The Justice Department's Policy Against Election Interference is Open to Abuse

[Nevilledog]

Link to tweet

https://www.lawfareblog.com/justice-departments-policy-against-election-interference-open-abuse


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.”

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