explainer
President Trump falsely claimed the Justice Department was tied up in two federal lawsuits ahead of the November election.
Former President Donald Trump said there is a “60-day rule” in place to prevent the White House from taking certain law enforcement actions against candidates ahead of the U.S. election.
If true, Trump’s comments could have far-reaching implications, as he faces two federal charges: one in Washington, D.C., for allegedly trying to overturn the 2020 election, and another in Florida for hoarding classified documents.
Friday marks 60 days until the November 5 presidential election. So what is the basis for this claim?
What did Trump say?
President Trump cited the “60-day rule” last month in Washington, D.C., when responding to an updated indictment in a federal election case.
“The Department of Justice’s policy is that they should not take any action to influence the election within 60 days of the election, and they just did,” Trump wrote on Truth Social.
Others have since echoed that criticism. Last week, Trump-appointed Judge Eileen Cannon questioned federal prosecutors in the Florida case about whether holding the trial before the election violated rules.
But legal experts have rejected that position. And Jay Bratt, the federal prosecutor in the Florida case, told Cannon that no rules or norms would be broken because Trump had already been indicted.
So what was Trump saying?
President Trump was referring to unwritten and admittedly vague guidance that Justice Department officials have adopted over the years.
A 2018 report by the Justice Department’s inspector general states unequivocally: “No department policy specifically prohibits public investigative action during a specific period prior to an election.”
Nonetheless, it noted, many officials have adhered to “a longstanding, informal practice of avoiding overt law enforcement and prosecutorial activity in the lead-up to an election, typically within 60 or 90 days of the election.”
The report examined former FBI Director James Comey’s decision to reopen the investigation into Democratic nominee Hillary Clinton’s emails just 11 days before the 2016 election.
Comey later said it was a “very important norm” to avoid actions that could influence the election.
What relief is there for Trump?
No. The guidelines are not written down, so they are best practices, not legal requirements. It is up to departmental staff to decide when and how to apply the guidelines.
Legal scholars argued that Trump cannot claim he was treated unfairly because the guidelines only apply to major actions, such as filing a new indictment.
Because President Trump was indicted well before the 60-day period ended, the guidelines theoretically do not apply to federal cases pending in Washington, D.C., and Florida.
This guidance does not apply to President Trump’s impending sentencing in New York or his ongoing trial in Georgia, both of which are state-level lawsuits, but this guidance is strictly federal.
Finally, Trump may need to check his math. Even if he was right about the rules, Special Counsel Jack Smith filed an updated indictment on August 27, 70 days after the November 5 election.
