Published by The Lawfare Institute
in Cooperation With
If you are a federal prosecutor, you know not to interfere in an election. You know it because it is (and should be) the ethos of your office, or because someone explained the policy to you when you were new, or because you read the quadrennial memo issued by the attorney general. Regardless of how you first learned it, you understand what the policy says and what it means, and you obey it.
Yet the Justice Department’s election policy is more ambiguous and thus potentially more subject to abuse than we might think. This is particularly concerning in light of Attorney General William Barr’s hints that the department may, in advance of the 2020 election, release material from U.S. Attorney John Durham’s review of the FBI investigation into the links between the Trump campaign and Russia.
The policy has remained remarkably similar across administrations. Whether prosecutors read the memo issued in 2008 by Attorney General Michael Mukasey, or 2012 by Attorney General Eric Holder, or 2016 by Attorney General Loretta Lynch, they read virtually similar guidance. All three memos were issued early (March or April) in the election year, bore the same title (“Election Year Sensitivities”) and contained the same two sections in the same order: one that addressed the “Investigation and Prosecution of Election Crimes” and one that addressed the Hatch Act, a federal law prohibiting executive branch employees from engaging in partisan political activity under certain circumstances.
Those three memoranda all state that Justice Department employees “may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” They also encourage prosecutors to contact the Public Integrity Section of the Criminal Division for further guidance regarding “the timing of charges or overt investigative steps near the time of a primary or general election.”
This continuity has stretched into the Trump administration. In February 2020, Barr issued a memorandum with a different focus, though he cited the three previous election memoranda approvingly and noted that new requirements for opening sensitive investigations would be “in addition to all existing policies.”
But for all this continuity, ambiguities remain. When does the policy kick in—that is, what constitutes an act “near the time” of an election? Does that mean 60 days before an election? 90 days? After Labor Day (as one of us believed when he was a federal prosecutor)? The exclusion period is not specified, nor would that be a simple thing to do.
What if the Justice Department takes an overt investigative step for a purpose other than to affect an election? Is that okay? Imagine that the statute of limitations is about to run on a public corruption case and the target of that case—a public official running for reelection—refuses to sign a waiver extending that period, as is his right. Then, charging that official just before the election is not for the purpose of affecting the election. Rather, it is for the purpose of preserving the charge. And the indictment is arguably both appropriate and within the policy.
Similarly, we can think of other sensible exceptions to the policy. Imagine if, during a court authorized wiretap shortly before an election, FBI agents overheard a plan to kill a witness. That would necessitate an overt investigative step to stop the murder, and few (we trust) would quarrel with it.
And, by the way, what is an “overt investigative step?” Consider the issuance of a grand jury subpoena to a witness in a public corruption case in which the subject of the investigation is a member of Congress standing for election. Would this be a covert investigative step, because federal rules of procedure impose a secrecy obligation on prosecutors and agents and grand jurors not to speak about those proceedings? Or is it an overt investigative step, because no such secrecy obligation is imposed on the witness receiving the subpoena and her lawyer? Ryan Goodman, in an excellent article on what he calls the “rule of forbearance,” describes one former U.S. attorney’s concern with this sort of issue in the run-up to the 1992 presidential election.
What if refraining from taking an overt step near an election—as the policy counsels—improperly favors one candidate over another? Can the department do nothing and arguably violate the policy? We think so, and that is precisely the dilemma that confronted Preet Bharara, former U.S. attorney for the Southern District of New York, as recounted in his book, “Doing Justice.”
In 2011, the Bronx district attorney indicted under seal a New York state legislator—Nelson Castro—on corruption-related charges. Bharara’s federal office, at the request of the district attorney, partnered on the case. Castro then decided to cooperate against a group of dishonest Russian businessmen and against another corrupt member of the state legislature, Eric Stevenson, including by wearing a wire. As the election approached, Bharara faced a dilemma:
The entire state assembly was up for reelection in November 2012. And here we were, in the fall of 2012, with Assemblyman Nelson Castro’s guilty plea still sealed, his wearing a wire still secret, his cooperation still unknown. As the election neared, we had a decision to make. Do we compel [his] resignation to allow a non-corrupt officeholder to take his place? Or do we continue the secret investigation? It was not an easy question to answer. The case was not ready. To stop now or to unseal the charges against Castro could spook the Russians and halt the collection of damning evidence. It would warn the other assemblyman, Eric Stevenson. Also, apart from the case we were developing against the Russians, Nelson Castro was attempting to help us investigate other individuals, and those investigations were at a very early stage…. If we did nothing, we would be arguably complicit in the reelection of a corrupt figure who we knew would not finish out his term.
Was it fair to deprive Castro’s constituents of a different and hopefully more honest representative for some number of months as the investigation progressed—that is, before Castro’s guilty plea was unsealed and before he resigned from office? Was it appropriate to deny another presumably noncorrupt individual from taking that office sooner? Was it fair to Stevenson’s constituents to permit him to continue to serve as the Castro case remained sealed and the investigation progressed? And would it have been fair if the Castro case was revealed too early—and Stevenson was not prosecuted as a result, though prosecutors had good evidence that Stevenson was corrupt, too? As Bharara reflected, “did we defraud the public or do a public service?”
What’s more, did prosecutors obey or violate the Justice Department policy? It seems as if the Southern District of New York advantaged at least one candidate (Castro) and disadvantaged another (Castro’s opponent) by keeping the case sealed and continuing the investigation. For what it is worth, we think Bharara made the right choice and did a public service. But the second question—did prosecutors violate the policy?—is exceptionally difficult.
And if the Castro case is difficult, how about a matter that is outside the heartland of the policy—like the issuance by the Justice Department of a report examining conduct prior to the 2016 election? In May 2019, Barr appointed U.S. Attorney for the District of Connecticut John Durham to examine the circumstances surrounding the investigation of the Trump campaign’s connections with Russia. Durham is a career prosecutor with an excellent reputation, has handled high-profile public corruption cases and undoubtedly knows Justice Department policy with respect to elections. Nor is this his first difficult or prominent assignment—Attorneys General Mukasey and Holder both previously tasked Durham with sensitive investigations for the Justice Department. (One of us, Rosenberg, was a witness in one matter.)
The public knows relatively little about what Durham is doing. Durham does not talk about his work publicly (with one disappointing and notable exception). Barr has said Durham’s findings will be released in a report. We worry that it will be released as an October surprise for the purpose of affecting the election—something the policy would normally forbid.
Barr has suggested that the release of the report just before the election would not violate Justice Department policy, because Durham is not focused on a particular candidate and the report is not for the purpose of interfering in an election. We see two problems here. First, as noted, the policy is not entirely clear. Prosecutors acting in good faith fully understand what the policy says and, separately, what it means, and have obeyed it. But Barr has room to argue that the release of the report is not an “overt investigative step” and that the policy is inapplicable because Durham is not pursuing “criminal charges” against Biden or Trump. We think, however, that this misses the point.
The second problem, and the larger one, is Barr. In the absence of a clear and unambiguous policy, prosecutors and agents have always relied on the “norms” of the Justice Department to do their work. Again, we understand both what the policy says and what it means—two different but related things. Stated another way, we understand both the letter and the spirit of the policy—stay very far away from elections. Norms govern the work of the Justice Department as much as laws and regulations and policies. But Barr has routinely ignored norms to serve a president who has continually and improperly interfered in the work of the Justice Department. Will Barr now ignore both what the policy says and what it means to advance the president’s political fortunes?
Certain things cannot easily be reduced to writing. Justice Potter Stewart could not devise a practicable definition of obscenity in Jacobellis v. Ohio, relying on his famous “I know it when I see it” construction to explain why the material at issue in that case was protected by the First Amendment and could not be censored. And though Stewart’s characterization lacked precision, we know what he said and we know what he meant. It made sense. The ethos of the Justice Department here makes sense, too. We hope that Barr understands, applies, and adheres to that ethos. We hope he will follow both what the policy says and what it means. Sadly, we doubt he will.