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The Justice Department’s Dilemma on Indicting Politicians Before Elections

As the 2022 midterm elections approach Election Day, November 8, 2022, a federal investigation into former President Donald Trump’s handling of classified documents is testing the U.S. Department of Justice’s unwritten policy.

Some legal analysts believe that the so-called 60-day rule allows federal prosecutors to hold public meetings in the final stages of an election to avoid influencing a candidate’s perceptions or for or against political parties. It suggests that action should be delayed.

This goal of political neutrality appears to be upheld by Attorney General Merrick Garland and FBI Director Christopher Wray. The two have largely refrained from publicly commenting on ongoing federal and state investigations into possible crimes Trump may have committed while in office at the White House.

But political neutrality is open to interpretation.

It took 60 days leading up to the 2016 presidential election when then-FBI Director James Comey released a series of controversial public statements about Hillary Clinton’s use of a private email server as secretary of state. rule seems to have been broken.

Comey’s comments began in the summer and fall of 2016 and continued until the weekend before Election Day when he announced the end of the investigation. Clinton and her supporters argue that Comey’s controversial behavior played a role in her defeat and Trump’s election.

rules, not laws

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

Each election season, the Attorney General reissues the department’s Election Year Confidential Memorandum to staff. Garland said he issued the memo on May 25, 2022.

“Law enforcement officers and prosecutors shall not, for the purpose of influencing an election, or in any matter or incident, use public statements (whether sourced or not), investigative procedures, criminal prosecutions, You must never choose the timing of your actions or other actions to the advantage or disadvantage of any candidate or party,” explains Garland’s 2022 memo.

Garland’s memo essentially repeats the language of the department’s de facto internal policy manual on election season investigations.

Garland’s memo, however, does not suggest that there is a clear 60-day rule.

This all suggests that the Justice Department needs to be particularly scrutinizing actions taken in the run-up to elections to avoid appearing to intentionally favor a candidate or party. I’m sorry.

accept interpretation

Few legal scholars question the existence of the 60-day rule, but its scope is controversial.

Former Attorney General Bill Barr has interpreted the rule narrowly. He suggests that the rule may apply only to activities that harm certain candidates.

Other legal observers have suggested that the rule applies broadly to investigations that could affect an entire election. This may involve surveying people associated with the candidate, or situations in which the candidate is only tangentially related.

Comey public comment

Comey may not have wanted to influence the outcome of the 2016 election, but he later offered Clinton a kind of apology in his book A Higher Loyalty.

“I’ve read that she feels personally angry with me. I’m sorry about that,” Comey wrote. “I regret that I failed to explain to her and her supporters why I made her decision.”

A Caucasian man in a business suit is gesturing with his hands while sitting behind a table and answering questions.
Former FBI Director James Comey testifies before the House Oversight Committee on July 7, 2016 about Hillary Clinton’s email system. Xinhua/Bao Dandan via Getty Images

Apology or not, Comey and his actions during the 2016 presidential election have taken a toll on the credibility of both the FBI and the Justice Department. By following his extensive 60-day rule, the Justice Department and his FBI may have been saved from the emergence of political bias.

However, in some cases it’s a good idea to waive the 60-day rule.

If a federal investigation is particularly timely and proceeds without the purpose of influencing an election, it is consistent with the underlying policies of the Justice Manual, even if it may contradict a broader interpretation of the 60-day rule. There is a possibility that

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

If the public trusts the DOJ to make investigative decisions without political bias, it may not need to follow the 60-day rule. If the public doesn’t trust her DOJ, following the rules can be essential.

An investigation into the national security implications of classified documents found in Mar-a-Lago is an important test.

Numerous court documents. The top document prominently states
A judge has released a search warrant showing that the FBI is investigating former President Donald Trump for allegedly violating the Espionage Act. AP Photo/John Elswick

Mr Trump has often argued that federal investigations into his actions were little more than a political witch hunt, but the Justice Department continues to pursue investigations aimed at hurting or helping specific candidates or political parties. There are no signs of

Naturally, lengthy investigations can hit the midterm or presidential election cycle. But if the suspension of the investigation could harm national security, it may be necessary to continue the investigation throughout the election season, even if it affects many elections.

The unintentional irony of the 60-day rule

The rule is designed to protect the Justice Department’s reputation for neutrality by keeping partisan politics out of the investigation.

Perhaps the way to do it is to ignore the election calendar and run the survey as if the election calendar didn’t exist.

Politics will undoubtedly come into play when the direction of the investigation is altered by the election dates, and in some of these cases justice may be denied if it is delayed.

Sticking to the rules could result in a candidate being elected because voters didn’t have all the information about the candidate’s behavior and personality.

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

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