(WASHINGTON) — Special counsel Jack Smith’s lead prosecutor in the classified documents case against former President Donald Trump made news last week when he told a federal judge that putting Trump on trial in the days leading up to the 2024 presidential election would not violate Justice Department policy.
The federal judge overseeing Trump’s case, Aileen Cannon, specifically pressed assistant special counsel Jay Bratt on whether presenting the Justice Department’s case to a jury as late as September or October would violate what is known as DOJ’s “60-day rule” to not take prosecutorial steps that could influence an upcoming election.
Bratt responded that the policy Cannon was referring to related to bringing indictments in the days leading up to an election, and was not relevant to the documents case for which Trump was first indicted last June.
“We are in full compliance with the Justice Manual,” Bratt said.
“Smith is saying, well, we’re not in technical violation of the rule — assuming that it’s a hard-and-fast rule — because Trump was already indicted and proceedings are ongoing already and they’re public,” said former assistant attorney general Stuart Gerson.
So, what is the “60-day rule”? And does DOJ’s broader position of avoiding steps that could have an impact on an election conflict with special counsel Smith’s efforts to bring either of his cases against Trump to trial before the 2024 election?
The DOJ’s ’60-day rule’
While Bratt’s answer to Judge Cannon made clear the government’s position that taking Trump to trial in the days leading up to an election was in compliance with the ‘Justice Manual’ containing all of DOJ’s rules and policies, the so-called ’60-day’ rule is actually nowhere to be found in the manual itself.
The most comprehensive recent explanation of the “rule” can be found in DOJ Inspector General Michael Horowitz’s June 2018 report that examined the FBI’s actions in the investigation of former Secretary of State Hillary Clinton’s email server in advance of the 2016 election.
Horowitz noted the rule “is not written or described in any Department policy or regulation” but is instead described by former officials as a “general practice that informs Department decisions.”
He further pointed to then-FBI Director James Comey’s testimony before Congress that had characterized the rule as “a very important norm which is … we avoid taking any action in the run up to an election, if we can avoid it.”
“Several Department officials described a general principle of avoiding interference in elections rather than a specific time period before an election during which overt investigative steps are prohibited,” the report said.
“The purpose of the 60 day rule is to avoid Executive Branch interference in political matters — in the conduct of elections,” Gerson said. “In other words, not to influence the outcome.”
Horowitz also notably cited statements on the rule from a then-senior ranking DOJ official who is now a top assistant to Smith, Ray Hulser.
Hulser told Horowitz that there was “a sense, there still is, that there is a rule out there, that there is some specific place where it says 60 days or 90 days back from a primary or general [election], that you can’t indict or do specific investigative steps.”
“He said that there is not any such specific rule, and there never has been, but that there is a general admonition that politics should play no role in investigative decisions, and that taking investigative steps to impact an election is inconsistent with the Department’s mission and violates the principles of federal prosecution,” the report stated.
While senior officials in the department had considered making the “60-day rule” a formal policy as part of a separate memorandum issued by former attorneys general related to “Election Year Sensitivities,” Hulser said the idea was rejected as “unworkable.”
He explained prosecutors are generally expected to operate under an admonition that “politics should play no role in investigative decisions, and that taking investigative steps to impact an election is inconsistent with the Department’s mission and violates the principles of federal prosecution,” the report said.
At no point in Horowitz’s discussion of the ‘rule,’ however, was there mention of how to handle a case against a candidate who had already been indicted. The report makes clear, in fact, that the “60-day” rule was generally understood to relate to “investigative steps” or prosecutorial decisions — which would bolster Bratt’s argument that it has no application to either of Trump’s cases brought in the summer of last year.
A federal judge for the Northern District of California, Jeremy Fogel, told ABC News the “60-day rule” doesn’t apply to the federal judiciary.
“Once a case has been indicted and is in the system, as is the situation with the charges against Mr. Trump, judges are responsible for managing it in accordance with the Speedy Trial Act and other applicable legislation and court rules,” Fogel, now executive director of the University of California’s Berkley Judicial Institute, said. “Nor, do DOJ’s practices and policies have any relevance at all to how state court judges and prosecutors conduct criminal proceedings.”
DOJ broader policies regarding acts that could impact elections
Beyond the “60-day” rule, however, there is debate in the legal community over whether Smith’s broader efforts to put both cases on trial prior to the 2024 election conflicts with DOJ’s longstanding position of avoiding actions that could have an impact on elections.
In recent years, various attorneys general — including Attorney General Merrick Garland — have penned memos on “Election Year Sensitivities” intended to remind prosecutors of existing policies regarding conduct surrounding elections.
“Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” Garland said in a memo in advance of the 2022 midterm elections. “Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
In a recent essay, former assistant attorney general Jack Goldsmith argued Smith’s “rush” to take Trump to trial clearly violates DOJ’s rules outlined by Garland.
“If this were any other defendant than Donald Trump, the rush to trial — which cannot possibly give the Trump legal team adequate time to prepare its defense — would be deemed wildly unfair. Prosecutors and judges typically give defendants significantly more temporal leeway in trials of lesser magnitude with less severe charges,” Goldsmith said. “Smith’s timing decisions clearly have a “purpose of affecting” the presidential election, at least in the sense of wanting the American people to have the benefit of his evidence and the jury’s verdict before voting in November.”
For special counsel Smith’s part — through public filings and statements from prosecutors in court, he has repeatedly avoided direct mentions of the November election as influencing his decisionmaking. Instead, he has pointed to the “public’s interest” in seeing the charges against Trump quickly resolved.
“The public interest in a prompt trial is at its zenith where, as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office,” Smith wrote in one brief to the Supreme Court.
In a recent interview with CNN, Garland was pressed over whether there was a certain date where holding a criminal trial for Trump so close to the election would be unacceptable.
“The cases were brought last year, the prosecutor has urged speedy trials with which I agree and it’s now in the hands of the judicial system, not in our hands,” Garland said.
That’s largely true as of last week’s developments in both of Smith’s cases against Trump. The Supreme Court’s decision to take up Trump’s argument he should be immune from prosecution in the 2020 election subversion case means that trial likely wouldn’t occur until September at the earliest, if the court rules against him. And Judge Cannon strongly indicated in the hearing last Friday that the Justice Department’s proposed rescheduling of the classified documents trial for July was also too rushed, given complicated issues regarding classified evidence in the case that could create additional weeks or months of delay.
But Gerson argued the extraordinary situation calls for more transparency from Garland on whether he approved of some of the more aggressive steps from Smith to push the cases to trial.
“I think it’s a very legitimate concern,” Gerson said. “It doesn’t matter to me that you can hide behind the “60-day rule” and say there’s no technical violation. That’s true, but to me, that doesn’t end the inquiry. It kind of starts it — which is, does it make sense in terms of national policy, where the Justice Department is supposed to be to go forward.”
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