(Bloomberg) -- Donald Trump is using his updated election obstruction indictment to revive political bias complaints against the US special counsel, citing a government policy to avoid action close to an election that could sway the results.
Current and former Justice Department officials say he doesn’t have it right though.
There’s no formal policy on when exactly prosecutors should postpone activity before election day. An informal 60-day cut-off that’s been observed in the past is directed at new actions, not existing cases, they say.
The Justice Department’s internal manual bars prosecutors from timing actions “for the purpose of affecting any election.” Although it’s been interpreted to mean the department should avoid publicizing major steps or new charges against a candidate within 60 days of an election, that isn’t in the official policy — contrary to Trump’s latest social media posts attacking the case.
Special Counsel Jack Smith on Tuesday announced that a federal grand jury in Washington returned a new version of the indictment accusing Trump of conspiring to illegally overturn the 2020 election results.
The latest indictment — which features the same four charges as the original version — was filed 70 days before Nov. 5, when Trump stands for reelection, but the former president complained it was within 60 days of when some states start early voting.
The Justice Department policy is meant to avoid revealing new information that could influence voters, so it wouldn’t apply to the Trump case, in which the allegations were already public and details were even removed to comply with a recent US Supreme Court decision, said Mary McCord, a former department official in the national security division.
“A superseding indictment really isn’t covered by this unless it’s a superseding indictment that’s adding a whole bunch of new charges or adding new defendants,” said McCord, the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
The election policy featured prominently during the 2016 presidential contest, when then-FBI Director James Comey disclosed new information shortly before election day related to the investigation into Hillary Clinton’s use of a private email server.
An inspector general report about those events quoted former top Justice officials confirming there is no explicit 60-day rule, but instead a “general practice” of avoiding activity that was “more fraught” as an election approaches.
Trump’s defense lawyers broached the election timing issue in a separate case brought by Smith’s office charging the former president with mishandling state secrets. During a hearing in March, Jay Bratt, a lead prosecutor and chief of Justice’s Counterintelligence and Export Control Section of the National Security Division, said his team confirmed with department experts that the policy didn’t apply to cases that were already charged.
Trump’s lawyers could raise concerns about proximity to Nov. 5 as US District Judge Tanya Chutkan prepares to set a schedule in the Washington case. Both sides are due to file proposals for next steps later this week. The judge previously said that she wouldn’t base a trial calendar on Trump’s “personal and professional obligations.”
Justice Department policies aren’t binding on the judge.
James Trusty, a former defense attorney for Trump and a former senior Justice Department official in the criminal division, said he didn’t think it was clear Smith’s office had violated the election interference policy.
Trusty has been critical of Smith’s handling of the prosecution and said he saw areas where his former client could attack the revised indictment. But the timing issue is “a little bit much ado about nothing,” he said.
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