There Is Bipartisan Lawfare, but There Is No 60-Day Rule

If you could get past the banana republic aspect of lawfare (I can’t, but stay with me here), there was wry amusement to be had in the Democrats’ lawfare against Donald Trump: Their theory was that he had tried to influence the outcome of the 2020 election; their remedy was to try, themselves, to influence the 2024 election by timing indictments and trials against him to destroy his candidacy.

This illustrates a notable feature of lawfare — the incumbent party’s politicized exploitation of the government’s law enforcement powers against its partisan foes and other politically useful scapegoats. The fact that a prosecution is politicized does not mean it is meritless.

Trump did not just try to influence the 2020 election outcome; he orchestrated a fraudulent, soft coup attempt to reverse the result of a contest he’d lost. And the Democrats really did exploit law enforcement (and intelligence) processes to try to influence the outcome of the 2024 election, just as they’d tried to influence the outcome of the 2016 election — efforts that blew up on them spectacularly. But the fact that they politicized law enforcement doesn’t mean Trump was innocent of misconduct — notwithstanding the Trump administration party line that if the Democrats practiced lawfare in 2020 (they did) the cases against Trump must have been bogus (they were the opposite of bogus . . . although whether the misconduct was criminally prosecutable in light of various legal complexities is another story).

Similarly, the fact that the Trump administration is waging lawfare against Ilhan Omar, the Somalia-born, antisemitic, anti-Trump progressive Democratic representative from Minnesota, hardly means the allegations against her are bogus — facts I tried to elucidate in yesterday’s post. She has been described, accurately it increasingly appears, as “drenched in fraud” — and on that score, read Rich’s column on her intriguing background; also, Power Line’s Scott Johnson aptly points readers to David Steinberg’s comprehensive 2019 analysis of Representative Omar’s path to America.

We are starting to get a better understanding of what the investigation is about. I’ll address that in a separate post. For now, suffice it to stay that what I theorized yesterday still holds: The Trump DOJ is principally using criminal processes, even though the potential criminal prosecution of Omar, at least for immigration fraud offenses, is time-barred, in order to achieve a civil law objective, namely, to strip her of citizenship, get her removed from Congress, and deport her.

In this post, I want to address a red herring that, as usual, has reared its head in a lawfare case: the Justice Department’s mythical “60-day rule,” under which prosecutors are supposedly admonished to refrain, in the two months prior to an election, from taking any overt investigative or charging steps that might influence the outcome. As I’ve said, probably 60 times, there is no 60-day rule.

I believe I last addressed this in the late summer of 2024, when Biden DOJ special counsel Jack Smith was patently seeking to affect the outcome of the then-upcoming election by filing against Trump a superseding indictment (in the January 6 case). At the time, there was no prospect of getting the case tried before Election Day (as Smith had moved heaven and earth to try to do, despite DOJ regulations against taking the campaign calendar into account when making prosecutorial decisions). The point of the superseding indictment, and of Smith’s subsequently filed proffer of the evidence he’d hope to present if there were a trial, was to make damning information about Trump a front-of-mind concern for voters.

Naturally, Trump and his supporters cried, “election interference!” They also did the usual spouting about how Smith was violating the spirit, if not the letter, of the 60-day rule (the superseding indictment was filed 69 days prior to the election, though Smith’s proffer was made public just a month before the election). For his part, Smith countered that Trump did not merit 60-day protection, regardless of how blatantly political a prosecutorial action appeared to be, because the allegations against him were already publicly known.

Anyway, I said at the time that “if the partisan roles were reversed, the media would be amplifying Democratic squawking [about prosecutorial actions within 60 days of an election] rather than circling the wagons around Republican prosecutors.” And sure enough, that is what’s now happening: With the search warrant executed at Omar’s Washington, D.C., home just three weeks prior to the midterm election, both Omar and the Democrats’ friends in the legacy media are harping on how Trump is endeavoring to influence the contest for control of Congress. It’s a useful diversion for partisans who don’t want to try to explain Omar’s dubious acquisition of American citizenship.

I also related why there is no 60-day rule, despite all the chatter about it every time investigations collide with elections:

I refer to a “so-called” [60-day] rule advisedly, for it is not written down anywhere. The closest DOJ has come to formal guidance is then–attorney general Michael Mukasey’s 2008 memo, reminding the feds that: “law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

That’s all we’re talking about: a commonsense admonition that, during the roughly two months before an election, lawyers sworn to uphold the law without fear or favor should try to avoid taking unnecessary, overt investigative steps that could influence an election’s outcome.

Readers may recall that I am not a fan of this imaginary rule — nor was I as a prosecutor (though I don’t recall ever “violating” it). As AG Mukasey observed, prosecutors should never be governed by the election calendar (there are actual written DOJ rules against that). Sure, taking an overt step might influence an election. It is at least equally true, though, that being in politics should not be an advantage for a lawbreaker. If, in a normal case, a prosecutor would, say, arrest and charge a person based on strong evidence, then to refrain from doing so just because the person is a candidate for public office is also a form of “election interference.”

There is no real 60-day rule because there is no clear-cut rule that would make sense in all situations. What is an “overt” action? Grand-jury proceedings, for example, are secret, but if a prosecutor subpoenas a witness to testify in a political-corruption probe, nothing prohibits the witness from alerting the press that X candidate is under investigation (grand-jury-secrecy rules bind grand jurors, prosecutors, and court reporters, not witnesses and their lawyers). And the question of what is a “necessary” investigative step is very subjective. If I as the prosecutor know that a candidate/suspect is hoarding incriminating evidence in his office, and that he might destroy it if I don’t grab it first, should I refrain from seeking a search warrant because there’s an election in 45 days and the publicity is apt to hurt the candidate’s prospects? Again, my job is to enforce the law; I don’t want to influence the election, but the election, even if I can’t totally tune it out, is not my priority.

The Trump DOJ is not big on following the actual rules, so it would be naïve to expect its prosecutors to hew to unwritten guidelines more honored in the breach than the observance. If I were an Omar supporter, I’d be working on a convincing substantive response to the suspicions of immigration fraud (if there is one) rather than grousing about the timing of said suspicions.