Senior Justice Department officials are not generally known for public bluster or bold pronouncements, but this October in particular they are under explicit instructions to stay mostly quiet, in the hopes of avoiding the sort of political firestorms that engulfed the department in the last two presidential elections.
The department has instituted what many insiders privately refer to as a “30-day rule,” intended to greatly diminish the number of public appearances or statements by its top officials. An internal Justice Department memo issued this summer and reviewed by The New York Times said senior officials “must be vigilant to prevent the appearance that any of our official duties are an effort to influence the outcome of the election.”
In some ways, the memo reflects Attorney General Merrick B. Garland’s intent to steer well clear of partisanship amid a high-stakes presidential contest in which the Republican nominee, former President Donald J. Trump, faces criminal charges in two federal cases that could evaporate if he wins, or send him to trial if he loses.
For his part, Mr. Trump has no such qualms. He declared on Thursday that if elected, he intends to fire the special counsel Jack Smith on his first day back in office.
“I would fire him within two seconds,” Mr. Trump said in an interview with the conservative radio host Hugh Hewitt.
In stark contrast to such campaign rhetoric, the Justice Department memo underscores the broader concern internally that anything it does or says in the final days of the campaign could be used as political ammunition, particularly since its practices and policies have come under far greater scrutiny since the 2016 election.
In the final days of the race that year, the F.B.I. revealed that it had reopened an investigation into the Democratic candidate, Hillary Clinton, prompting criticism that the bureau inadvertently shaped the outcome of the election.
In the 2020 cycle, the department and the F.B.I. came under pressure from Trump advisers to acknowledge an investigation into Joseph R. Biden Jr.’s son Hunter.
In keeping with the 30-day rule, Mr. Garland is spending part of this week visiting U.S. attorneys’ offices around the country — visits with no planned public events. And at one of the largest law enforcement assemblies of the year, the International Association of Chiefs of Police, held this week in Boston, top Justice Department officials were noticeably absent. The F.B.I. director, Christopher A. Wray, did attend, though even his presence was the subject of some discussion among federal officials. Lower-level Justice Department officials also attended.
The memo seeks to create a more formal and explicit direction to adhere to what past generations of Justice Department officials sometimes referred to as a pre-election “quiet period.”
The department already has a practice known as the 60-day rule, which generally holds that in the two months before an election, prosecutors should take no overt, unnecessary investigative steps that could affect an election. The guiding principle is that prosecutors should exercise caution in regards to politically sensitive cases.
In some ways, the 30-day rule is both broader and stricter than the 60-day rule, but both guidelines are subject to different interpretations, priorities and criticism.
Already, Mr. Trump has tried to use the 60-day rule to accuse the department of acting improperly. When Mr. Smith recently filed court papers describing the evidence supporting charges that Mr. Trump conspired to obstruct the results of the 2020 election, the Republican candidate cried foul. In that instance, however, the key decisions were made by the courts, which are not subject to the department policy.
Within the department, there has been some debate over where precisely to draw the line for the 30-day rule. Some officials see the challenge as navigating a narrow path between doing anything that could put them back at the center of the political stage and being so silent as to appear inactive or intimidated by their loudest critic, Mr. Trump.
“While it’s critically important for Justice Department officials to both stay above the political fray and not do anything that gives even the appearance of being political or partisan, I think it’s also important that the department not overreact to unwarranted or false criticism of the department and the F.B.I. being politicized or politically motivated,” said Greg Brower, a former U.S. attorney.
The Justice Department’s in-house referee making those decisions is Bradley Weinsheimer, the agency’s most senior career official. Mr. Weinsheimer also wrote the memo.
“Previous attorneys general have made an effort and encouraged presidentially appointed officials, or those acting in such positions, to avoid making public appearances in any state shortly before a primary or general election in that state, to the greatest extent practicable,” the memo states.
Mr. Garland “has determined that this precedent should be followed,” the document says. “This policy is not meant to restrict the normal, day-to-day activities of political appointees. For example, United States attorneys may still make public appearances related to a verdict, indictment or investigation, and should still meet with community stakeholders, including the department’s law enforcement partners, as they normally would.”
Beyond that, however, senior department leaders and any of the 93 U.S. attorneys around the country should consult with Mr. Weinsheimer “prior to accepting a public appearance invitation or making a public appearance,” the memo said. The time frame laid out in the memo runs from Sept. 30 to Nov. 6, one day after Election Day.
A memo issued for the 2022 congressional elections had similar language. But the stakes for the department are considerably higher now that Mr. Trump has pledged to make sweeping changes in government if he is elected back to the White House, including using the Justice Department to pursue his perceived enemies.
The post As Election Looms, Justice Dept. Tries to Steer Clear of Politics appeared first on New York Times.
