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The Justice Department's dilemma over prosecuting politicians before an election

Henry L. Chambers Jr., Professor of Law, University of Richmond, The Conversation on

Published in News & Features

But Garland’s memo does not suggest that a clear 60-day rule exists.

It merely suggests that actions taken closer to an election ought to be especially scrutinized to ensure that the Justice Department does not appear to purposely advantage a candidate or party.

Though very few legal scholars question the existence of the 60-day rule, the scope of the rule is a matter of dispute.

Former Attorney General Bill Barr has interpreted the rule narrowly. He has suggested the rule may apply only to activity that will harm a specific candidate.

Other legal observers have suggested the rule applies more broadly to investigations that might affect an overall election. That might include investigations of people connected to a candidate or situations where the candidate is only tangentially related.

Though Comey may not have had any desire to affect the 2016 election’s outcome, he would later make an apology of sorts to Clinton in his book “A Higher Loyalty.”


“I have read she has felt anger toward me personally, and I’m sorry for that,” Comey writes. “I’m sorry that I couldn’t do a better job explaining to her and her supporters why I made the decisions I made.”

Apologetic or not, Comey and his actions during the 2016 presidential election caused both the FBI and the Justice Department to suffer a blow to their credibility. Following a broad 60-day rule might have saved the Justice Department and FBI from the appearance of political bias.

But in some situations, jettisoning the 60-day rule may be advisable.

If a federal investigation is particularly timely and is proceeding with no purpose of affecting an election, then it may be consistent with the underlying policy of the Justice Manual – even if doing so may be inconsistent with a broad interpretation of the 60-day rule.


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