EXPLANATORY
Trump falsely claims the Justice Department is paralyzed ahead of the November vote as it faces two federal cases.
Former President Donald Trump said the Justice Department has a “60-day rule” that prevents it from taking certain enforcement actions against candidates in the run-up to a U.S. election.
If Trump’s statement were correct, it would have broad implications as he faces two federal indictments: one in Washington, DCfor efforts to overturn the 2020 election, and another in Florida for allegedly hoarding classified documents.
Friday marks 60 days until the November 5 presidential election. So what are the facts behind this claim?
What did Trump say?
Trump invoked the “60-day rule” in response to a Updated indictment filed last month in the federal election case in Washington, D.C.
“The policy of the Department of Justice is that the Department shall not take any action that might affect an election for 60 days after that election — but it just took such an action,” Trump wrote on Truth Social.
Others have since echoed those criticisms. Last week, Trump-appointed Judge Aileen Cannon asked federal prosecutors in the Florida case whether holding a trial before the election would violate the rule.
Legal experts, however, have rejected that position. And Jay Bratt, the federal prosecutor in the Florida case, told Cannon that since Trump had already been indicted, no rules or standards would be violated.
So what was Trump talking about?
Trump was referring to an unwritten — and admittedly vague — directive that Justice Department officials have adopted over the years.
A 2018 report from the Justice Department’s inspector general clearly states: “No Department policy contains a specific prohibition on overt investigative actions during a given period preceding an election.”
However, she noted that many officials have adhered to “a long-standing unspoken practice of avoiding overt law enforcement and prosecutorial activity in the run-up to an election, typically in the 60 or 90 days before Election Day.”
The report examined former FBI Director James Comey’s decision to reopen an investigation into Democratic presidential candidate Hillary Clinton’s emails just 11 days before the 2016 election.
Comey later said that avoiding any action that could impact the election was a “very important standard.”
Does Trump have any recourse?
No. As this directive is not written, it is a good practice rather than a legal requirement. It is up to departmental officials to decide when and how it applies.
Legal scholars have also argued that Trump cannot claim he was treated unfairly because the directive only applies to major actions, such as filing new indictments.
Since Trump was indicted well before the 60-day period, the directive theoretically would not apply to federal proceedings underway in Washington, D.C., and Florida.
This guideline does not apply to Trump either. upcoming conviction in New York or the ongoing trial in Georgia: both are state-level proceedings, while the directive is strictly federal.
Perhaps Trump should finally rethink his calculations. Even if he were right about the rule, special counsel Jack Smith filed the updated indictment on August 27, 70 days before the November 5 vote.