A rule is a rule?
Except when it is not. The Justice Department has a "rule" that prohibits activity that could influence an election. What exactly is the rule? Well, that gets complicated...
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Middle District of Tennessee, the director of a mental services clinic was charged with not paying the taxes withheld from employees to the IRS. The amount not paid totaled more than $1 million.
In the Northern District of Ohio, a man was sentenced to three years in prison for making a false statement on his immigration documents. He said he had never been arrested when, in fact, he had been convicted of war crimes in Croatia.
In the Southern District of Florida, a former US Air Force member for sexually assaulting another Air Force member while they were both stationed in the United Kingdom.
A rule is but a rule…
We sit just two weeks away from another presidential election. Last week, a District Court judge in the District of Columbia released a 4-volume appendix that Special Counsel Jack Smith filed as part of his argument that former President Donald Trump’s conduct following the 2020 presidential election was not official conduct subject to immunity. The appendix is nearly 2000 pages but is heavily redacted. Those who have read it report there is nothing in the appendix that has not already been made public. Everything redacted is most likely grand jury material which the Federal Rules of Criminal Procedure prohibit from disclosure at this stage. Why does this release and filing matter?
As Harvard Law professor and former head of the Justice Department’s Office of Legal Counsel observed, Smith’s filing of his argument and the appendix violates the Justice Department’s rule that the Department do nothing that would impact an election. Goldsmith argues that, at the very least, the filing creates the appearance that the Special Counsel is not sensitive to the fact that the disclosure could impact the election by portraying former President Trump in a negative light. In his post, Goldsmith also notes that what the rule requires and prohibits is not entirely clear. This week’s issue examines the rule and whether it should apply to Smith’s actions.
Federal criminal prosecution is an inherently political act. Those who hold influence over the prosecutor’s discretion to bring or not bring criminal charges can use that influence to attack political opponents or protect political friends. Suppose there is a highly contested race for a seat in the US House of Representatives. The US Attorney’s Office with jurisdiction over the congressional district has information that one of the candidates committed wire fraud when raising campaign funds. The case is ready for prosecution two weeks before the election. Should the US Attorney’s Office proceed with the case?
The answer, as usual, is that it depends. One perspective argues that the prosecution should proceed. Voters have the right to know that one of the candidates potentially violated the law. Another perspective is that the prosecution should wait until after the election. After all, all criminal defendants are presumed innocent and filing criminal charges are merely allegations. The mere filing of charges, however, creates a presumption of guilt and voters may decide based on that presumption rather than whether the candidate is actually innocent. Another consideration is the candidate’s party. If the US Attorney is affiliated with a party opposing the suspect candidate, then there will be an appearance that the prosecution is to harm the opposing party candidate and boost the associated candidate.
To alleviate this concern, the Department of Justice, in its Justice Manual, prohibits taking certain actions that could impact an election. Section 9-85.500, added only in 2022, prohibits prosecutors from “select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” The key limitation in this provision is that it prohibits actions “for the purpose of” election influence. It does not prohibit taking action. Instead, it focuses on the purpose. Merely filing the argument and the appendix is not enough to prove Jack Smith violated this provision. There must be some evidence he did so to influence the election.
This is the only formal regulation relating to prosecutors interfering in elections. However, there is also an informal “60-day” rule that prohibits taking an action that might influence the election. The problem is that the “rule” is informal and passed down more by culture than by promulgation.
Following the 2016 disclosures of Democratic candidate Hillary Clinton’s alleged unlawful activity, the Justice Department’s Inspector General conducted an investigation. His investigation uncovered considerable variation over individual attorney understanding of the “60-day” rule. The general consensus is that it applies to taking action that could influence the outcome of an election. There are some important nuanced interpretive differences. One is whether it applies to cases yet begun or whether it applies to cases already in court. If the former, it would limit investigative action. If the latter, it would mean the prosecutors could not do anything near an election. Another important variation is the timing. Some say there is not a precise time frame. Others say 60 days and still others say 90 days.
When attempting to understand the rule, a key aspect is the degree of control prosecutors have when an election approaches. Returning to the hypothetical congressional election, the prosecutor has absolute control over the timing of the criminal charges (subject only to the statute of limitations). The prosecutor can choose to file the charges before or after the election. Suppose, instead, the charges had been filed six months before the election. The charged candidate, three months prior to the election, filed a motion to suppress certain evidence the government collected. The judge then set a hearing for two weeks before the election. Must the prosecutor not attend? Must the prosecutor ask for a continuance? If the prosecutor asks for a continuance and the judge denies it, what must the prosecutor do? Once the prosecutor has filed criminal charges, the prosecutor loses near total control over the case’s timing.
This is particularly relevant to Jack Smith’s recent filing. The special counsel filed the criminal charges well over a year before the election. Had Smith been able to control the entire court process, he would have tried the case by this point. However, as he has the right to do, former President Trump asserted various legal arguments relating to the case, taking the case to the United States Supreme Court. This takes time. Further, the judge in the case scheduled the filing deadlines. Smith could not simply ignore them. The Justice Department cannot simply tell the judge that it cannot comply with the judge’s schedule because an informal Department rule requires the Department to wait.
The timing of when the Department can take action and when it cannot is also problematic. If the underlying principle is the concern about influencing an election, does the timing matter? The mere fact that criminal charges are filed against a candidate for office creates the possibility that the election outcome will be influenced. Is there an appreciable difference between 60 days and 120 days? The indictment is still there. Surely there is not a widespread grant of immunity for candidates for office.
When Smith filed the criminal charges against former President Trump, the former president was already a declared candidate for the presidency. This undoubtedly had some impact on some undecided voters. With such a close election, these few voters have a large impact on the election’s outcome. Should Smith have waited until December 2024 to file the charges in the first place? Some would certainly say the answer is yes. However, that is clearly not the Department’s rule.
Ultimately, as Goldsmith argues, the Department must clarify the rule. The best option might be to eliminate the informal rule and keep the written rule in the Justice Manual. The focus on intent, rather than possible influence, provides a clear standard and addresses the key concern. Of course, no rule is going to prevent allegations of improper conduct. The informal rule is meant to address this. No rule, however, can address all circumstances. Instead, employing ethical and nonpartisan people to enforce the law is the best way to prevent undue election interference.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!