As midterms approach, election rule raises dilemma for Trump probes

WASHINGTON – As the midterm elections approach, top Justice Department officials are considering whether to temporarily limit work on criminal investigations involving former President Donald Trump because of an unwritten rule that prohibits overt actions that could improperly influence the vote, according to people briefed on the discussions. .

Under what’s known as the 60-day rule, the department has traditionally avoided taking steps ahead of elections that could affect how people vote, fearing that such moves could be interpreted as an abuse of its power. to manipulate the American Republic.

Trump, who is not on the ballot but wields enormous influence in the Republican Party, poses a particular dilemma for Attorney General Merrick Garland, whose department is conducting two investigations involving the former president. They include the extensive investigation into the January 6, 2021 riot and his related attempt to subvert the 2020 election, and another into the hoarding of sensitive government documents at his Florida club and residence.

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A Justice Department spokesman declined to comment. But as the 60-day deadline approaches this week, the highly unusual situation offers no easy answers, said Jack Goldsmith, a Harvard Law School professor and former head of the Justice Department’s Office of Legal Counsel.

“It’s an unwritten rule of uncertain scope, so it’s not at all clear that it applies to taking investigative action against a non-candidate former president who is nevertheless intimately involved in the November election,” Goldsmith said. “But the purpose of avoiding any major impact on the election seems to be involved.”

Despite its name, the 60-day rule is a general principle and not a written law or regulation. Its scope and limits are undefined. The Department of Justice has some official policies and guidelines related to the rule, but they offer little clarity on how it should be applied in the present situation.

The department’s handbook prohibits the deliberate timing of any official action “with intent to influence any election” or to intentionally help or harm a particular candidate or party. It is more unclear about steps that do not have this motivation, but could increase this perception. In such a case, he says, officials should consult with the department’s public integrity division.

In recent presidential election cycles, attorneys general have also issued written memos reminding prosecutors and agents to follow department policy when it comes to such sensitivities. In 2020, Attorney General William Barr required high-level approval to open investigations of candidates running for certain offices.

In May, Garland reiterated Barr’s order in a memo issued during a midterm hearing. However, none of these measures expressly prohibit the indictment of political candidates or the taking of investigative or prosecutorial measures that could affect the election in the last 60 days before Election Day.

A 2018 report by the Justice Department’s independent inspector general, Michael Horowitz, shed some rare insight into the 60-day rule. It examined former FBI Director James Comey’s decisions less than two weeks before the 2016 election to distance himself from the practice by reopening an investigation into Hillary Rodham Clinton’s use of a private email server and informing Congress about it. Many believe that Comey’s actions contributed to her limited demise.

A section of the 2018 report cited interviews with former senior DOJ and FBI officials who acknowledged the 60-day rule as an unwritten practice that informs the department’s decisions. (It is not clear when and how it became a recognized rule.)

The report quoted a former official as saying: “People sometimes have a mistaken impression that there is a magic 60-day rule or a 90-day rule. There is no. But … the closer you get to the election, the more zealous they are.” Another former top official told the inspector general that when drafting the 2016 election year sensitivities rules, department leaders “considered codifying the substance of the 60-day rule, but rejected that approach as unworkable.”

The rule is usually simple. For example, if prosecutors believe a candidate for office has committed a crime and the person’s indictment is likely to be delayed, they should wait until after the election to do so.

But the sophistication of Trump’s investigations is testing the limits of that practice. It is unclear whether the 60-day rule applies to a high-profile political figure who is not running in the upcoming election.

Normally it wouldn’t, but Trump, who has hinted at another run for the presidency in 2024, is effectively the face of the Republican Party, his image and fate deeply intertwined with those of most of his party’s congressional candidates. who continue to embrace him.

Also unsettled is whether the 60-day rule includes investigative steps that occur outside of public view but may become known anyway, such as the execution of a search warrant or the issuance of a subpoena.

While the government is typically prohibited from publicly discussing certain investigative steps and details unless and until charges are filed, witnesses and people under scrutiny—and their lawyers—are free to disclose them. Trump announced last month that the FBI had searched his Mar-a-Lago residence, and a court filing from his lawyers said he had previously received a grand jury subpoena.

Rebecca Roiphe, a professor of legal ethics at New York Law School and a former Manhattan district attorney, said that given the ambiguous parameters of the 60-day rule, Justice Department officials are likely to interpret it in light of its primary purpose, the who said it is to “project legitimacy” by keeping politics and investigations separate.

By that standard, he predicted Garland would rule that the rule should apply to Trump investigations until the midterm elections. But to what extent, he said, is still murky.

“They’re probably going to go back to why this standard is in place and then make the call on whether or not it warrants stopping everything right now or just stopping part of it,” he said. “It’s hard to say exactly what they would do without knowing what’s going on with the investigation.”

There is no indication that the Justice Department is close to deciding whether to charge Trump in any investigation. Official statements and court filings have both been portrayed as active investigations with significant work.

But in the document probe, public disclosures strongly suggest investigators may turn to two Trump lawyers who falsely claimed in June that all documents marked classified at Mar-a-Lago had been returned in response to a subpoena for them. .

That could lead to a subpoena of one or both of those attorneys or — if investigators believe they have enough evidence to charge one or both of them with perjury or obstruction — negotiations for possible sealed charges, plea deals and cooperation agreements .

Steps like these could all unfold behind closed doors. But they might also become public, where they would attract significant attention.

Underscoring the unanswered question of what is allowed under the 60-day rule, legal ethics experts had conflicting views on what Garland might choose.

Bruce Green, a Fordham University professor and former federal prosecutor, said the rule was more of a “weak restriction,” a “word of mouth, warning policy” that shouldn’t be “overdone.” In particular, he said, it should not extend to blocking investigative steps taken by the government in private simply because it “might get into the papers and have something to do with an election.”

Investigators, he said, should continue their work looking into whether Trump mishandled sensitive documents.

“You can’t stop an investigation like this for two months,” he said. “That would jeopardize the investigation.

“I don’t see it as the grand jury has to take a two-month vacation and no one is issuing subpoenas or questioning witnesses. If something leaks, it’s because the witnesses are talking, not because the prosecutors are leaking.”

In recent weeks, Garland has shown increased caution in the face of accusations of politicization. On Tuesday, he tightened restrictions on party activities by the department’s political appointees, barring them from attending any campaign events — even election day watch parties when their family members are running.

In that context, Roiphe said she believed Garland would tell investigators to delay every step of the Trump-related probe, lest the department appear to be escalating a criminal investigation that appears to point to the former president as people decide how to vote.

“I guess they’re going to be wrong about paying attention to this, but I don’t know,” he said, adding, “What they really don’t want is for someone to have a crumb that can blow up Fox News and say, ‘This is proof that the DOJ is broken. from politics”. “

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