WASHINGTON — As the midterm elections near, top Justice Department officials are weighing whether to temporarily scale back work in criminal investigations involving former President Donald J. Trump because of an unwritten rule forbidding overt actions that could improperly influence the vote, according to people briefed on the discussions.
Under what is known as the 60-day rule, the department has traditionally avoided taking any steps in the run-up to an election that could affect how people vote, out of caution that such moves could be interpreted as abusing its power to manipulate American democracy.
Mr. Trump, who is not on the ballot but wields outsize influence in the Republican Party, poses a particular dilemma for Attorney General Merrick B. Garland, whose department is conducting two investigations involving the former president. They include the sprawling inquiry into the Jan. 6 riot and his related effort to overturn the 2020 election and another into his hoarding of sensitive government documents at his Florida club and residence.
A Justice Department spokesman declined to comment. But as the 60-day deadline looms this week, the highly unusual situation offers no easy answers, said Jack Goldsmith, a Harvard Law School professor and the former head of the Justice Department’s Office of Legal Counsel.
“It’s an unwritten rule of uncertain scope, so it’s not at all clear that it applies to taking investigative steps against a noncandidate former president who is nevertheless intimately involved in the November election,” Mr. Goldsmith said. “But its purpose of avoiding any significant impact on an election seems to be implicated.”
Despite its name, the 60-day rule is a general principle rather than a written law or regulation. Its breadth and limits are undefined. The Justice Department has some formal policies and guidelines that relate to the norm, but they offer little clarity to how it should apply to the present situation.
The department manual prohibits deliberately selecting the timing of any official action “for the purpose of affecting any election” or to intentionally help or hurt a particular candidate or party. It is vaguer about steps that do not have that motive but might still raise that perception; in such a case, it says, officials should consult the department’s public integrity section.
In recent presidential election cycles, attorneys general have also issued written memos reminding prosecutors and agents to adhere to department policy when it comes to such sensitivities. In 2020, Attorney General William P. Barr required high-level approval for investigations to be opened into candidates running for certain offices.
In May, Mr. Garland reiterated Mr. Barr’s edict in a memo issued during a midterm cycle. But none of those measures specifically forbid indicting political candidates or taking investigative or prosecutorial steps that could affect an election in the last 60 days before Election Day.
A 2018 report by the Justice Department’s independent inspector general, Michael Horowitz, shed some rare insights into the 60-day rule. It examined the decisions by the former F.B.I. director, James B. Comey, less than two weeks before the 2016 election, to depart from the practice by reopening an investigation into Hillary Clinton’s use of a private email server and by telling Congress about it. Many believe Mr. Comey’s actions contributed to her narrow loss.
A section of the 2018 report cited interviews with former senior Justice Department and F.B.I. officials who acknowledged the 60-day rule as an unwritten practice that informs department decisions. (It is unclear when or how it became a recognized norm.)
The report quoted one former official as saying, “People sometimes have a misimpression there’s a magic 60-day rule or 90-day rule. There isn’t. But … the closer you get to the election the more fraught it is.” Another former top official told the inspector general that while drafting rules for 2016 election year sensitivities, the department’s leaders had “considered codifying the substance of the 60-day rule, but that they rejected that approach as unworkable.”
The Trump Investigations
The Trump Investigations
Numerous inquiries. Since former President Donald J. Trump left office, he has been facing several civil and criminal investigations into his business dealings and political activities. Here is a look at some notable cases:
Still, the rule is typically straightforward. For example, if prosecutors believe a candidate for office has committed a crime and it is possible to delay charging that person, they should wait until after an election to do so.
But the complexities of the Trump investigations are testing the limits of that practice. It is unclear whether the 60-day rule applies to a high-profile political figure who is not a candidate in the coming election.
Normally it would not, but Mr. Trump, who has hinted at another run for the presidency in 2024, is effectively the face of the Republican Party, his image and fate deeply intertwined with those of most congressional candidates in his party who continue to embrace him.
Also left unaddressed is whether the 60-day rule encompasses investigative steps that happen outside public view but may become known anyway, like executing a search warrant or issuing a subpoena.
While the government is normally forbidden from publicly discussing certain investigative steps and details unless and until there are charges, witnesses and people under scrutiny — and their lawyers — are free to disclose them. Mr. Trump announced last month that the F.B.I. had searched his Mar-a-Lago residence, and a court filing by his lawyers said he had earlier received grand jury subpoenas.
Rebecca Roiphe, a New York Law School professor of legal ethics and a former Manhattan prosecutor, said that given the 60-day rule’s ambiguous parameters, Justice Department officials are likely to interpret it through the lens of its primary purpose, which she said is to “project legitimacy” by keeping politics and investigations separate.
By that standard, she predicted that Mr. Garland would decide the rule should apply to the Trump investigations through the midterm elections. But to what extent, she said, is still murky.
How Times reporters cover politics.
We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.
“They probably are going to resort to the reason why that standard has been in place and then make the call about whether or not it actually justifies halting everything right now or just halting part of it,” she said. “It’s hard to say exactly what they would do without knowing what is going on with the investigation.”
There is no sign that the Justice Department is close to deciding whether to indict Mr. Trump in either investigation; statements by officials and court filings have portrayed both as active inquiries with significant work left.
But in the documents inquiry, the public disclosures strongly suggest that investigators may turn their focus to two lawyers for Mr. Trump who falsely claimed in June that all the documents marked as classified at Mar-a-Lago had been returned in response to a subpoena for them.
That could lead to the subpoena of either or both of those lawyers, or — if investigators think they have enough evidence to charge one or both with making a false statement or obstruction — negotiations over possible sealed charges, plea deals and cooperation agreements.
Read More on the Trump Investigations
Key developments in the inquiries into the former president and his allies.
Steps like those could all unfold behind closed doors. But they might also become public, where they would attract significant attention.
Underlining the unanswered question over what is permissible under the 60-day rule, experts in legal ethics had dueling views on what Mr. Garland might opt to do.
Bruce Green, a Fordham University professor and a former federal prosecutor, said the rule was more of a “weak restraint,” a “word of mouth, cautionary policy” that should not be “over-read.” In particular, he said, it should not extend to blocking investigative steps the government undertakes in private simply because it “might make its way into the newspapers and have something to do with an election.”
Investigators, he said, should proceed with their work examining whether Mr. Trump mishandled sensitive documents.
“You can’t put an investigation like that on halt for two months,” he said. “That would compromise the investigation.
“I don’t see it as the grand jury has to take a two-month vacation and no one issues subpoenas or questions witnesses. If something leaks out, it’s because the witnesses are talking, not because prosecutors are leaking.”
In recent weeks, Mr. Garland has exhibited heightened caution toward accusations of politicization. On Tuesday, he tightened restrictions on partisan activities by the department’s political appointees, barring them from attending any campaign events — even return-watching parties on Election Day when their own family members are candidates.
Against that backdrop, Ms. Roiphe said she believed Mr. Garland would tell investigators to delay any steps it could in the Trump-related investigations, lest the department seem as if it were escalating a criminal inquiry that appears to point at the former president as people decide how to vote.
“My guess is they are going to err on the side of caution on this, but I don’t know,” she said, adding, “What they really don’t want is for anyone to have any crumbs they can blow up on Fox News and say, ‘This is proof D.O.J. is corrupted by politics.’”