As Midterms Near, Election Rule Raises Dilemma For Trump Inquiries

Officials at the Justice Department are arguing about how an unwritten rule should affect the criminal probes into what happened on January 6 and how the former president handled sensitive documents. WASHINGTON — As the midterm elections get closer, top Justice Department officials are thinking about whether to temporarily slow down work on criminal investigations involving former President Donald J. Trump.

This is because there is an unwritten rule that says you can’t do anything that could improperly influence the vote. Under a rule called the “60-day rule,” the department usually doesn’t do anything that could affect how people vote in the 60 days before an election. This is because the department doesn’t want to be seen as using its power to mess with American democracy.

Mr. Trump is not running for office, but he has a lot of power in the Republican Party. This makes it hard for Attorney General Merrick B. Garland, whose office is looking into two things related to the former president. There is a big investigation into the riot on January 6 and how he tried to change the 2020 election results.

There is also an investigation into how he kept sensitive government documents at his Florida club and home. A spokesperson for the Justice Department wouldn’t say anything. But the 60-day deadline is coming up this week, and Jack Goldsmith, a Harvard Law School professor and the former head of the Justice Department’s Office of Legal Counsel, says there are no easy answers to the strange situation. Mr. Goldsmith said, “It’s an unwritten rule whose scope isn’t clear, so it’s not at all clear that it applies to investigating a former president who isn’t running for office but is still very involved in the November election.”

“But it seems to have gone against its goal of not having a big effect on an election.” Even though it is called the “60-day rule,” it is not a law or rule that is written down. Its size and limits are not clear. The Justice Department has some formal rules and policies about how things should be done, but they don’t say much about how they should be used in the present. In the department’s manual, it says that official actions can’t be timed on purpose “to affect an election” or to help or hurt a particular candidate or party.

It is less clear about steps that don’t have that goal but might still make people think that, in which case it says that officials should talk to the public integrity section of the department. During the last few times, there was a presidential election, attorneys general also sent out memos reminding prosecutors and agents to follow department policy when dealing with sensitive issues. In 2020, Attorney General William P. Barr made it hard to look into candidates for certain offices without approval from a high-level official.

When George Clooney Met Julia Roberts (Don’t Believe the Reports) In May, Mr. Garland repeated Mr. Barr’s order in a memo sent during the midterm elections. But none of these laws say that political candidates can’t be charged or that investigators or prosecutors can’t do things that could affect an election in the 60 days before Election Day. Michael Horowitz, the independent inspector general of the Justice Department, wrote a report about the 60-day rule in 2018 that gave some rare insights.

It looked at why the former head of the FBI, James B. Comey, went against the norm by reopening an investigation into Hillary Clinton’s use of a private email server and telling Congress about it less than two weeks before the 2016 election. Many people think that what Mr. Comey did lead to her narrow loss. In interviews for a section of the 2018 report, former high-level Justice Department and F.B.I. officials said that the 60-day rule is an unwritten rule that helps the department make decisions.

(It’s not clear when or how this became the standard.) One former official was quoted in the report as saying, “Sometimes people have the wrong idea that there is a magic 60-day rule or 90-day rule. Not really. But… the closer the election gets, the tenser it gets.” Another former top official told the inspector general that the department’s leaders had “thought about codifying the substance of the 60-day rule, but decided against it because it wouldn’t work.” This was when they were making rules for the 2016 election year. Still, the rule is usually easy to understand.

For example, if prosecutors think a candidate for office has done something wrong and they can wait to charge that person until after the election, they should. But the Trump investigations are putting this method to the test because they are so complicated. It is not clear if the 60-day rule applies to a well-known politician who is not running for office in the next election. Normally, this wouldn’t be the case, but Mr. Trump, who has said he might run for president again in 2024, is the face of the Republican Party.

His image and future are closely tied to those of most congressional candidates in his party who continue to support him. Also, it hasn’t been said if the 60-day rule applies to steps in an investigation that happens behind closed doors but may get out anyway, like executing a search warrant or giving a subpoena. Even though the government can’t talk about certain steps and details of an investigation until there are charges, witnesses, people under investigation, and their lawyers are free to talk about them.

Last month, Mr. Trump said that the FBI had searched his Mar-a-Lago home, and his lawyers said in a court filing that he had received grand jury subpoenas before. Rebecca Roiphe, a legal ethics professor at New York Law School and a former prosecutor in Manhattan, said that the 60-day rule is hard to define, so Justice Department officials are likely to look at it through the lens of its main goal, which is to “project legitimacy” by keeping politics and investigations separate.

Based on this, she thought that Mr. Garland would decide that the rule should apply to the investigations into Trump until the midterm elections. But how much, she said, is still not clear. “They’re probably going to go back to the reason why that standard has been in place,” she said. “Then they’ll decide if that’s a good enough reason to stop everything right now or just part of it.” “It’s hard to say what they would do for sure without knowing how the investigation is going.” There is no sign that the Justice Department is close to making a decision about whether or not to indict Mr. Trump in either investigation.

Official statements and court documents have shown that both investigations are still going on and have a lot of work to do. But the public information about the investigation of the documents strongly suggests that investigators may turn their attention to two lawyers for Mr. Trump who lied in June when they said that all the classified documents at Mar-a-Lago had been returned in response to a subpoena for them.

This could lead to a subpoena for one or both of their lawyers, or if investigators think they have enough evidence to charge one or both with making a false statement or obstructing justice, it could lead to talks about possible sealed charges, plea deals, and cooperation agreements. All of these steps could happen behind closed doors. But they could also get out into the public, which would get a lot of attention.

Experts in legal ethics had different ideas about what Mr. Garland might choose to do, which shows that there is still no clear answer about what is allowed under the 60-day rule. Bruce Green, a professor at Fordham University and former federal prosecutor, said that the rule was more of a “weak restraint” and should not be “over-read.” He said that it shouldn’t be used to stop the government from investigating in private just because it “might end up in the papers and have something to do with an election.”

He said that investigators should keep looking into whether Mr. Trump did anything wrong with sensitive documents. He said, “You can’t stop an investigation like that for two months.” “That would make the investigation harder to do.” I don’t see it as if the grand jury has to go on vacation for two months and no one can issue subpoenas or ask witnesses questions.

If something gets out, it’s because the witnesses are talking, not because the prosecutors are leaking.” In the past few weeks, Mr. Garland has been more careful about accusations of partisanship. On Tuesday, he made it harder for political appointees in the department to do political things. He told them they couldn’t go to any campaign events, even parties to watch returns on Election Day if their own family members were running.

In light of this, Ms. Roiphe said she thought Mr. Garland would tell investigators to hold off on taking any steps in the Trump-related investigations so that the Justice Department wouldn’t look like it was stepping up a criminal investigation that seemed to point to the former president while people were deciding how to vote. “I think they’ll err on the side of caution, but I don’t know for sure,” she said. “What they really don’t want is for anyone to have any crumbs they can blow up on Fox News and say, ‘This is proof the DOJ is corrupted by politics.'”

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