Attorney General Merrick Garland at the Department of Justice on Aug. 11, 2022.

Attorney General Merrick Garland at the Department of Justice on Aug. 11, 2022. Drew Angerer/Getty Images

The Justice Department’s Dilemma Over Prosecuting Politicians Before An Election

Political neutrality is open to interpretation.

As the 2022 midterm campaigns approach Election Day on Nov. 8, 2022, a federal probe into former President Donald Trump’s handling of classified documents is testing an unwritten policy of the U.S. Justice Department.

Some legal analysts have suggested that the so-called 60-day rule requires federal prosecutors to delay public actions during the final stages of an election to avoid influencing the perceptions of a candidate – or tipping the scale for or against a political party.

This goal of political neutrality appears to be adhered to by Attorney General Merrick Garland and FBI Director Christopher Wray. Both have largely refrained from making public comments on ongoing federal and state probes into possible crimes that Trump may have committed during his time in the White House, including on his alleged role in the Jan. 6 assault on the Capitol.

But political neutrality is open to interpretation.

In the run-up to the 2016 presidential election, the 60-day rule was apparently broken when then-FBI Director James Comey made a series of controversial public statements on Hillary Clinton’s use of a private email server during her time as secretary of state.

Comey’s comments began over the course of the summer and fall of 2016 and didn’t end until the weekend before Election Day when he announced the end of the investigation. Clinton and her supporters claim that Comey’s controversial actions played a role in her loss and Trump’s election.

A Rule, Not a Law

The 60-day rule is an interpretation of the Justice Department’s internal guidance to protect the federal agency’s reputation for political neutrality.

Every election season, the attorney general reissues the department’s Election Year Sensitivities memo to staff. Garland issued his memo on May 25, 2022.

“Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party,” Garland’s 2022 memo explains.

Garland’s memo essentially reiterates the language from the department’s substantial internal policy manual on election season investigations.

But Garland’s memo does not suggest that a clear 60-day rule exists.

It merely suggests that actions taken closer to an election ought to be especially scrutinized to ensure that the Justice Department does not appear to purposely advantage a candidate or party.

Open to Interpretation

Though very few legal scholars question the existence of the 60-day rule, the scope of the rule is a matter of dispute.

Former Attorney General Bill Barr has interpreted the rule narrowly. He has suggested the rule may apply only to activity that will harm a specific candidate.

Other legal observers have suggested the rule applies more broadly to investigations that might affect an overall election. That might include investigations of people connected to a candidate or situations where the candidate is only tangentially related.

Comey’s Public Comments

Though Comey may not have had any desire to affect the 2016 election’s outcome, he would later make an apology of sorts to Clinton in his book “A Higher Loyalty.”

“I have read she has felt anger toward me personally, and I’m sorry for that,” Comey writes. “I’m sorry that I couldn’t do a better job explaining to her and her supporters why I made the decisions I made.”

A white man dressed in a business suit gestures with his hand as he answers a questions while sitting behind a table.
Former FBI Director James Comey testifies before the House Oversight Committee over Hillary Clinton’s email system on July 7, 2016. Xinhua/Bao Dandan via Getty Images

Apologetic or not, Comey and his actions during the 2016 presidential election caused both the FBI and the Justice Department to suffer a blow to their credibility. Following a broad 60-day rule might have saved the Justice Department and FBI from the appearance of political bias.

But in some situations, jettisoning the 60-day rule may be advisable.

If a federal investigation is particularly timely and is proceeding with no purpose of affecting an election, then it may be consistent with the underlying policy of the Justice Manual – even if doing so may be inconsistent with a broad interpretation of the 60-day rule.

At issue is the importance of an investigation and the danger of pausing it.

If the public trusts the DOJ to make the decisions about the investigation without political bias, then following the 60-day rule may not be necessary. If the public does not trust the DOJ, then following the rule may be imperative.

The investigation regarding the national security implications of classified documents found at Mar-a-Lago is an important test.

A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters.
A judge unsealed a search warrant that shows the FBI is investigating former president Donald Trump for a possible violation of the Espionage Act. AP Photo/Jon Elswick

Though Trump often claims federal probes into his behavior are no more than political witch hunts, there is no indication the Justice Department is continuing the investigation with the purpose of hurting or helping specific candidates or a specific party.

Quite naturally, any lengthy investigation may bump up against a midterm or presidential election cycle. But if halting the investigation could damage national security, then continuing it through the election season may be necessary even if the investigation affects a number of elections.

The Unintentional Irony of the 60-day Rule

The rule is designed to protect the Justice Department’s reputation of neutrality by keeping partisan politics away from its investigations.

Arguably, the way to do that is to ignore the election calendar and run an investigation as if the election calendar did not exist.

Once an investigation’s course has been altered by the election calendar, it has arguably been infused with politics, and in some of those cases, justice delayed may be justice denied.

With strict adherence to the rule, a candidate may be elected because voters did not have all the information about the candidate’s behavior and character – an omission that challenges the democratic ideal of an informed citizenry.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.