Attorney General Merrick Garland and the Department of Justice must abolish the so-called ’60-day rule’, which would supposedly prohibit filing possible criminal charges against former President Donald Trump within 60 days of the upcoming interim terms.
For starters, Garland and the DOJ need to tell the American public that there is no such rule. That’s right – the rule doesn’t exist. It’s the DOJ equivalent of an urban myth. No actual law or written policy at the DOJ mentions doing anything within 60 days of anything related to criminal charges involving elections.
This is no secret. Commentators including Just Security, Lawfare, Jeffrey Toobin and the DOJ Office of Inspector General have all confirmed the absence of such a written rule, agreeing that it is actually more like an informal policy of prosecution best practices, including avoiding actions such as “public charges or other overt disclosures that may affect: [elections].”
But the power and influence of the myth remains ubiquitous. Former Attorney General Eric Holder referred to the line in his op-ed criticizing former FBI Director James Comey for violating DOJ rules and standards in his announcement about the Hilary Clinton investigation, less than a month before the elections she lost to Trump. The example of the Iran-Contra indictment of independent counsel Lawrence Walsh in the days leading up to the 1992 presidential election, in which the high-ranking Bush lost to Bill Clinton, is also often cited as a “rule-affirming violation.”
An actual written source of best practices (although there is no mention of 60 days) can come from the DOJ Manual (formerly known as the US Attorney’s Manual) section 9-85-500 (Actions That May Impact an Election ) outlining what we hope is common sense requiring that prosecutors and agents never “choose the timing of action” – including investigations, statements of criminal charges – for the purpose of influencing elections or targeting certain candidates or parties. help or harm.
Memorandums such as Holder’s 2012 memorandum, which use the same language, seem to imbue that principle as well.
There is a good reason why none of these written materials have a TBEN of 60 days or any other period of time as too close to an election. Such a TBEN is completely arbitrary and groundless in anything but instinct. Who says that an indictment that comes 65 days before an election is different from an indictment that comes 30 days before. More importantly, the rule is of no use as an anti-corruption practice, as no buffer zone in time can repair or prevent the damage done by a corrupt, politically motivated criminal prosecution designed to influence an election or a particular candidate. to hurt.
Of course, no ethics prosecutor needs such a rule, because ethical prosecutors do not abuse their power and office by arming criminal prosecutions against political enemies. And whatever Attorney General Garland’s shortcomings are, a lack of ethics is not one of them.
So why should he and DOJ officials care about this mythical rule, as some reports point out? The frustrating answer may be that Garland’s belief is that an important part of his mission is to restore the DOJ’s image and reputation as ethical and impartial, after it was left tattered by the Trump administration.
It may make him want to abide by the rule to avoid being criticized for being political, but such compliance could keep him from pursuing potential crimes committed by Trump and his inner circle in a timely manner when time is of the essence. .
For example, the current criminal investigation into possible violations of the Espionage Act, centered around the national defense documents recovered at Mar-a-Lago, poses potential ongoing risks to U.S. national security and even potential danger to human resources. Investigation into such a dangerous situation should not be delayed until after the midterm elections.
Likewise, the attempts to deny legitimate elections The results and alleged interference in electoral processes must be investigated and prosecuted yesterday, as the same illegal actions can take place now and in the aftermath of the by-elections. Indeed, all the evidence publicly disclosed by the Committee on 6 January indicates that the threat to the stability of our democratic process has never been greater. There is no point in delaying criminal investigations into threats to our electoral processes until after the next election.
This is why DOJ must deny the mythology of the “60 Day Rule” and just follow the evidence and the law. If they find evidence of criminal misconduct that they can prove beyond a reasonable doubt, they should immediately bring the case to court.
Fear of being accused of corrupt political motives cannot be the DOJ’s guiding star amid unprecedented dual threats to national security and our elections. The potential dangers that such threats pose to our country are so serious that any delay could cause irreparable damage and the DOJ must understand that trying to avoid the appearance of politics by doing nothing can eventually become political.