EXPLANATOR
Trump falsely claims the Justice Department is paralyzed ahead of the November election as he faces two federal cases.
Former President Donald Trump has said the Justice Department has a “60-day rule” that prevents it from taking certain enforcement actions against candidates in the run-up to a US election.
If Trump's statement is correct, it would have broad implications as he faces two federal indictments: one in Washington, D.C., for attempts to overturn the 2020 election, and another in Florida for allegedly hoarding classified documents.
Friday marks 60 days until the presidential election on November 5. What are the facts that support this claim?
What did Trump say?
Trump invoked the “60-day rule” in responding to an updated indictment filed last month in the federal election case in Washington, DC.
“The policy of the Department of Justice is that the Department of Justice should not take any action that would influence an election within 60 days of that election, but they just took that action,” Trump wrote on Truth Social.
Others have since echoed that criticism. Last week, Judge Aileen Cannon, a Trump appointee, questioned federal prosecutors in the Florida case about whether holding a trial before the election would violate the rule.
But legal experts have rejected that position. And Jay Bratt, the federal prosecutor in the Florida case, told Cannon that since Trump had already been indicted, no rules or regulations would be violated.
So what was Trump talking about?
Trump was referring to an unwritten — and admittedly vague — guideline that Justice Department officials have adopted over the years.
A 2018 report by the Justice Department’s inspector general states clearly: “No Department policy contains a specific prohibition on open investigative measures within a particular period before an election.”
Still, he noted that many officials have adhered to “a long-standing unwritten practice of avoiding overt law enforcement and prosecution activities close to an election, typically within 60 or 90 days of Election Day.”
The report investigated former FBI Director James Comey's decision to reopen an investigation into Democratic candidate Hillary Clinton's emails just 11 days before the 2016 election.
Comey later said that avoiding actions that could affect the election was a “very important rule.”
Does Trump have any recourse?
No. Because the guideline is not written, it is a recommended practice and not a legal requirement. Department officials are the ones who decide when and how the guideline is applied.
Legal experts have further argued that Trump cannot claim he was treated unfairly because the guidance only applies to major actions, such as filing new charges.
Since Trump had been impeached well before the 60-day deadline expired, the directive theoretically would not apply to the federal proceedings underway in Washington, D.C., and Florida.
The directive also does not apply to Trump's upcoming sentencing in New York or the pending trial in Georgia: both are state-level proceedings, while the directive is strictly federal.
Finally, Trump may need to check his math. Even if he were right about the rule, special counsel Jack Smith filed the updated indictment on August 27, 70 days before the November 5 vote.
