What Does the 60-Day Rule Require?

Last week I wrote a piece in the New York Times that argued that “Biden administration officials [had paid] insufficient public attention to executive branch rules that are designed to ensure that prosecutions are, in appearance and reality, conducted fairly and apolitically.” I have made elements of this argument in the past. But the lead argument in the Times was new: that the information disclosed in Special Counsel Jack Smith’s recent trial court brief framing his superseding indictment in light of the Supreme Court’s presidential immunity decision is in “clear tension with the Justice Department’s 60-day rule,” and thus “it is imperative that the department explain in detail” why the disclosures are consistent with this and other department rules and norms.

There is a lot in connection with this argument that I could not explain in the truncated general-audience analysis in the Times. The main focus of this essay is on the uncertainty about what norms actually govern Justice Department actions related to an election. (In the Times piece, I referred to the “uncertain scope” of the rule.) Inspector General Michael Horowitz flagged this uncertainty in his 2018 report on the activities of the Justice Department and FBI concerning various matters in connection with the 2016 election. Horowitz believed that this uncertainty was a problem for the department and asked for clarity. As of today, the department still has not addressed the inspector general’s concern. That failure, unfortunately, is at the root of the current problem.

This piece unpacks the uncertainty about the relevant norms and adds to what I said in the Times about what I believe the department should explain in connection with the Trump filing.

Relevant Norms

There are at least three sources of Justice Department rules and norms related to prosecutorial steps or disclosures relevant to an election. 

First is Section 9-85.500 of the Justice Manual, which is titled (with emphasis added) “Actions that May Have an Impact on an Election.” The ambiguities start with the title. Despite the title’s focus on the possible consequences (“impact”) of Department of Justice actions, the rule itself only prohibits impermissible purposes: 

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See§ 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General. (emphasis added)

This rule applies to “any action” by prosecutors and agents—“including investigative steps, criminal charges, or statements”—that has the “purpose” of affecting an election or advantaging or disadvantaging a political party. As noted, it focuses on bad purposes, not consequences. It thus appears to allow prosecutors or agents to do or say things that will in fact affect an election or advantage or disadvantage a candidate or party, so long as they do not act with a prohibited purpose. And if the action is “likely to raise an issue or the perception of an issue” under the provision, a referral must be made for approval by the Public Integrity Section or senior officials.

Second, Attorney General Merrick Garland, like past attorneys general, has issued an Election Year Sensitivities memorandum. The memorandum covers “the Department’s existing policies with respect to political activities” related to elections. It addresses many issues, but the one directly related to this piece relies on and basically repeats Section 9-85.500 of the Justice Manual:

[P]artisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. 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. Such a purpose, or the appearance of such a purpose, is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See JM § 9-27.260 – Initiating and Declining Charges – Impermissible Considerations; JM § 9-85.500 – Actions that May Have an Impact on an Election.

Third, there is the so-called 60-day rule. Inspector General Horowitz analyzed this rule in connection with his report on the activities surrounding the 2016 election, including the Hillary Clinton Investigation. Horowitz believed that the 60-day rule is something apart from the election sensitivities policy (which includes Section 9-85.500 of the Justice Manual). But he described the rule (often quoting others) in a wide variety of ways (with emphasis added):

• “a longstanding unwritten practice to avoid overt law enforcement and prosecutorial activities close to an election, typically within 60 or 90 days of Election Day.”
• “a longstanding Department practice of delaying overt investigative steps or disclosures that could impact an election.”
• a rule “under which prosecutors avoid public disclosure of investigative steps related to electoral matters or the return of indictments against a candidate for office within 60 days of a primary or general election.”
• “[W]e, if at all possible, avoid taking any action in the run up to an election, avoid taking any action that could have some impact, even if unknown, on an election.” (former FBI Director James Comey)
• “[T]here is generalized, unwritten guidance that prosecutors do not indict political candidates or use overt investigative methods in the weeks before an election.” (former U.S. Attorney Preet Bharara)
• “a general principle of avoiding interference in elections rather than a specific time period before an election during which overt investigative steps are prohibited.”
• “[T]he practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” (former Attorney General Loretta Lynch)
• “[I]f it were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.” (former Deputy Attorney General Sally Yates)
• “There isn’t [‘a magic 60-day rule or 90-day rule’]. But ... the closer you get to the election the more fraught it is.” (former Principal Associate Deputy Attorney General Matt Axelrod)
• “[T]here is not any such specific rule, and there never has been, but … there is a general admonition … that taking investigative steps to impact an election is inconsistent with the Department’s mission and violates the principles of federal prosecution.” (Ray Hulser, the former chief of the department’s Public Integrity Section).
• “[T]he Department and the FBI have long observed a norm against taking an action during the run-up to an election that could impact an election.”

There are several things of note in these descriptions.

First, everyone seems to think there is some norm or practice that is separate from the requirements of the manual. Two people equivocated. Axelrod says it is not a “magic” rule but that something becomes fraught as one approaches an election. Hulser says it is not a “specific rule” but rather a “general admonition.” (I have spoken to one former U.S. attorney who, by contrast, believes that there is no 60-day rule at all—which just underscores the uncertainty here.)

Second, it appears that the 60-day “rule” does not firmly kick in exactly 60 days before the election. Some say it is 60 days before, some say 60-90 days, and some describe the norm as having more bite as the election approaches.

Third, in most formulations, the norm or practice focuses not on impermissible purpose, as the manual does, but rather on the effect of an action on the election. This makes sense. As former Attorney General Eric Holder once said (with emphasis added): The “policy of not taking unnecessary action close in time to Election Day that might influence an election’s outcome” aims (in part) to “maintain the public trust in the department’s ability to do its job free of political influence.” If the department takes any action close to an election that might influence the election (or appear to), it runs the significant risk of seeming to act politically, which is devastating for its reputation and credibility. This might explain why the 60-day rule focuses on consequences and not (like the manual) purposes, which, after all, the public cannot verify. If a prosecutor does something covered by the 60-day rule a week before the election with no motive to affect the election but that does in fact run a clear risk of affecting it, the manual would allow the action but the 60-day rule would appear to prohibit it or at least counsel caution.

Fourth, there is uncertainty and seeming disagreement about what actions fall within the scope of the norm. A majority of the formulations above, and of the inspector general formulations, say that the norm applies to any prosecutorial action or activity that could affect the election. This is the formulation that Smith’s actions are in clear tension with. But a minority say that the rule applies more narrowly to something like law enforcement or investigative steps. Again, the purpose of protecting the department’s integrity would seem to argue for the rule applying to all public department actions that could affect the election, but the formulations are just not consistent on this point. (Recall that the manual, which is tied to purpose, applies to “any action, including investigative steps, criminal charges, or statements.” It is unclear why the 60-day rule would not also apply to public statements and any other action, but some people clearly believe that is the case.)

Finally, there are other forms of uncertainty not mentioned in the inspector general’s report. It is unclear, for example, whether the rule applies to a prosecutor’s failure to take an action prior to the election, which itself might be viewed as improperly favoring one candidate over another. And everyone thinks that any 60-day-type rule must have exceptions—for example, “if there’s an exigent threat to public safety.” But there is apparently no canonical understanding about exceptions. 

Why This Uncertainty Matters

This is a significant amount of uncertainty, ambiguity, and disagreement for a norm related to elections that aims to ensure that the department is not, and does not appear, political in its actions, and that aims to ensure public confidence in the department’s actions. The uncertainty is a serious problem. If the scope of the rule is not clear even to longtime department officials—and it isn’t—then it cannot be a guide to action. It also cannot do its public justificatory work because the public cannot discern whether the department complied with the norm or is acting opportunistically.

Inspector General Horowitz was worried about this uncertainty six years ago. In his report, he stated (with emphasis added): “Given the lack of a written policy, we recommend that the Department consider providing guidance to agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements, or other actions that could impact an election.” As noted above, the department has not responded to this suggestion in the more than six years since the report. 

The uncertainty about the norm posed a problem in 2020, when several commentators believed that Attorney General William Barr might violate department election interference policies in the run-up to the presidential election. Michelle Onibokun and Chuck Rosenberg wrote that “ambiguity of the Justice Department’s election policy is particularly concerning in light of hints from Attorney General William Barr about a possible October Surprise.” For them, the only pertinent rule was expressed in the manual and in the election sensitivities memo; but they noted “ambiguities” related to what others refer to as the 60-day rule. In the same context but in contrast, Ryan Goodman and Andrew Weissman stated that the 60-day rule was something apart from the written policy. They described the policy in broad terms as an “unwritten norm [that] urges officials to defer publicly charging or taking any other overt investigative steps or disclosures that could affect a coming election,” and as a prohibition on “public indictments or other overt disclosures in cases that could affect the election” (emphasis added).

Despite the fact that the possible ambiguities in election-related norms was a concern in 2016 and 2020, and that Horowitz sought clarification in 2018, the department still has not clarified or even explained the 60-day rule.

The Smith Prosecutions

The Justice Department clearly believes that its actions in the Trump prosecutions are consistent with Justice Department-related election rules and norms. As Attorney General Garland noted after the department’s filing of the superseding indictment in the election case, the special counsel “is required by the regulations to follow the policies of the Justice Department, including the election sensitivities policies, and I'm quite confident that he did so.” My question, though, is why the department thinks that allowing the immunity brief disclosures a month or so later in the election case was consistent with relevant norms.

No one has answered this question. The Justice Department did briefly describe its view of the relevant rules and norms seven months ago in a different case—the documents case. In the March 1 hearing, Judge Aileen Cannon had this exchange with Jay Bratt of the National Security Division:

COURT: … [T]here has been some emphasis in the papers on the Justice Department Manual, Chapter 9, 85.500. I did want to give you an opportunity to state your view on that. I didn't see it, really, memorialized in the papers thus far from your end.

MR. BRATT: So, Your Honor, we are in full compliance with the Justice Manual. And we actually did a consult with the public integrity section which oversees that portion of the Justice Manual. And that provision does not apply to cases that have already been charged, that are being litigated. It doesn't apply to setting a trial date. We are fully in compliance. We have two former chiefs of the Public Integrity Section as part of the … Special Counsel's office, and we … would not do something that violated the -- the Justice Manual.

THE COURT: Okay. So just so I understand, that provision, as you have explained it to me, does not affect already-indicted matters --

MR. BRATT: Correct.

THE COURT: -- is that what you are saying?

MR. BRATT: The Department can control what we do before a case is filed and tell us -- they can tell prosecutors don't file an indictment or don't seek a complaint. It's called the 60-day rule that really is --

THE COURT: But you see that 60-day rule as key to the date of indictment, not the date of trial?

MR. BRATT: It is where we have control of something and we can bring a new case within whatever period of time before an election. It does not apply to cases that have already been charged.

THE COURT: Okay. Thank you for explaining that position.

Some commentators have interpreted this exchange to mean that Bratt is saying “that both the 60-day rule and the Justice Manual provisions do not apply to cases that have already been indicted and are being litigated.” That understanding of the 60-day rule, if it is now the Justice Department’s position, would be a very significant narrowing of what most in the Horowitz report believed the 60-day rule to mean. For three reasons I am very doubtful that we can draw this conclusion on the basis of this exchange.

First, the relevant discussion “in the papers” before the hearing was about the manual, not the 60-day rule. Second, Bratt’s opening response was (with emphasis added) that “we are in full compliance with the Justice Manual.” It is in this context, referring to the manual, that Cannon says “that provision … does not affect already-indicted matters,” and Bratt says “correct.” (Bratt appears to be wrong, by the way, if he is suggesting that the manual—which focuses on the “purpose of affecting any election”—does not apply after indictment; the prohibition applies to “the timing of any action,” including “statements.”) Third, Bratt appears to be moving on to a different idea altogether when he says, “It's called the 60-day rule that really is,” and then is cut off by Cannon, who asks, “you see that 60-day rule as key to the date of indictment, not the date of trial?” Bratt’s response—“It is where we have control of something and we can bring a new case within whatever period of time before an election. It does not apply to cases that have already been charged”—might have been referring to both the manual and the 60-day rule. But Bratt is very far from explicit. It is just not clear that he is saying that the 60-day rule is irrelevant after indictment.

What the Department Should Explain

As noted, the department does not think the immunity brief disclosures violate department norms, and it seems pretty clear that the Public Integrity Section has signed off on all of Smith’s actions. But a secret legal interpretation by the Public Integrity Section that runs counter to most of the views expressed in an inspector general report, and an obscure mangled colloquy in a different case, do not suffice to justify a headline-generating disclosure a month before the election in the prosecution of a former president who is at the same time the political opponent of the current president and of the vice president who is running for president.

This should be simple. All the department needs to do is to explain (a) how it interprets the 60-day rule, and (b) in light of that interpretation, why the department posed no objection to Judge Tanya Chutkan’s disclosure of its remand immunity brief close to the election. There are many possible answers. Here are four:

• There is no 60-day rule. At most it is an admonition that seeks to raise awareness about the appearance of impropriety under the manual, which is about illicit purpose. Once Public Integrity assures itself that the prosecutor did not act with illicit purpose, the prosecutor can proceed, regardless of the electoral consequences. 
• The 60-day rule exists but does not apply to cases that have already been indicted and are being litigated. This interpretation would mean that department policy permits a prosecutor to make a disclosure or statement (otherwise consistent with department norms) in an indicted case close to an election, even if the statement would clearly favor one party in an election or otherwise affect the election. I doubt this is the Justice Department’s position, but it would be useful to know if it is.
• The 60-day rule exists and applies to disclosures in indicted cases close to the election, but the immunity brief disclosures did not implicate the rule because the new “disclosures” do not reveal material new information and could not (despite the foreseeable headlines) influence (or appear to influence) the election.
• The 60-day rule exists and presumptively applies to disclosures in indicted cases close to the election, but the immunity brief disclosures did not implicate the rule because, as Attorney General Garland suggested in January in connection with the timing of the trial, the trial judge and not the department has full control over timing issues (including briefing schedules and disclosures) in the trial process. On this view, the department need not worry if its brief affects the election as long as the judge determines disclosure timing. (Recall that the department expressed no concern about Judge Chutkan’s proposal to set the brief deadline close to the election or to reveal the information publicly in her discretion, and that she was unconvinced that she was “bound by or has jurisdiction to enforce Department of Justice policy.”) 

I do not know which of these answers, or perhaps another, is correct. But I think the department should tell us.

Conclusion

I guess it is not surprising that so many commentators who exalted executive branch norms during the Trump era are quiet about or seek to excuse the norm violations and norm-compliance fudges related to the Trump prosecutions that I identified in my Times piece. 

But I am surprised that the department that I know cares about the appearance and reality of norm compliance has not made clear to the public why it is acting in compliance with governing norms and past practices in connection with the most sensitive prosecution in its history—especially since the inspector general flagged the problem six years ago. If this was an easy call for the department, it should be easy to explain to the public. If it was not an easy call—if, for example, it involved clarifying the existence and scope of the 60-day rule, and applying the clarified rule to the fraught circumstances of the Trump prosecutions—then there is even greater urgency for the department to explain itself.