'An urban myth': Ex-federal prosecutor urges Merrick Garland to scrap '60-day Rule' to nail Donald Trump

15 September 2022

Former President Donald Trump is not on the ballot for the November midterm elections, but that has not alleviated the United States Department of Justice's reluctance to indict him for one or more crimes that he is alleged to have committed during and after his White House tenure.

On Thursday, ex-federal prosecutor Shan Wu explained in The Daily Beast why adhering to the so-called "60-day rule" is unjustified and pressed Attorney General Merrick Garland to pursue Trump.

"To start with, Garland and the DOJ need to tell the American public that no such rule exists. That’s right—the rule doesn’t exist. It’s the DOJ’s equivalent of an urban myth. No actual law or written policy at the DOJ mentions anything about not doing anything within 60 days of anything vis-à-vis criminal charges, involving elections," Wu wrote.

"This is no secret," he noted. "Commentators including Just Security,Lawfare, and Jeffrey Toobin, plus the DOJ Office of Inspector General have all confirmed the absence of any such written rule and agreed that it’s actually more like an informal policy of prosecutorial best practices that includes avoiding actions such as 'public indictments or other overt disclosures that could affect [elections].'"

Nor is the debate over how to tiptoe around the 60-day "myth," as Wu described it, anything new.

"Former Attorney General Eric Holder referenced the rule in his op-ed criticizing former FBI Director James Comey for having violated DOJ rules and norms in his announcement about the Hillary Clinton investigation less than a month before the election she lost to Trump," Wu recalled, adding that "the instance of Independent Counsel Lawrence Walsh’s Iran-Contra indictments coming days before the 1992 presidential election in which the senior Bush lost to Bill Clinton isalso often cited as a 'violation that proves the rule.'"

Late last month, Garland authorized the release of an internal DOJ memo that outlined the protocols for conducting criminal investigations of potential political candidates.

"We must be familiar with the rules governing participation in partisan political activities and ensure that politics does not compromise the integrity of our work. The public trusts that we will enforce the laws of the United States in a neutral and impartial manner, without the actual or apparent influence of political agendas," the document states. "With that objective in mind, the purpose of this memorandum is to outline the restrictions on political activity applicable to all employees as well as the additional restrictions imposed on certain employees within the Department."

Indeed, Garland has been conspicuously careful to avoid appearing partisan or having a vendetta against Trump and his confederates.

But as Wu pointed out, the violations that Trump and his allies are suspected to have executed – from breaching the Espionage Act to witness tampering to election fraud – are all egregious enough to warrant scrapping the uncodified 60-day regulation.

"For example," Wu opined, "the current criminal investigation into potential Espionage Act violations centered around the national defense documents recovered at Mar-a-Lago involves potential ongoing risks to U.S. national security and even possible danger to human sources. Investigating such a dangerous situation should not be put off until after the midterm elections."

Wu further posits that the 60-day provision is completely arbitrary.

"Who is to say that an indictment coming 65 days before an election is any different than one coming 30 days before? More importantly, the rule lacks any utility as an anti-corruption practice because no buffer zone of time can possibly remedy or prevent the damage done by a corrupt, politically motivated criminal prosecution intended to influence an election or hurt a particular candidate," he said.

"Of course, no ethical prosecutor needs such a rule because ethical prosecutors do not abuse their power and office by weaponizing criminal prosecution against political enemies," Wu continued. "And whatever Attorney General Garland’s shortcomings may be, a lack of ethics is not among them."

Wu also alluded to the ongoing probe by the House Select Committee to Investigate the January 6th Attack on the United States Capitol, which on Wednesday announced its next hearing on September 28th, as another example of the urgency that Garland and the Justice Department face.

"Indeed, all of the evidence uncovered publicly by the Jan. 6 Committee indicate that the threat to the stability of our democratic process has never been greater. It makes no sense to put off criminal investigations into threats to our very election processes until after the next election," Wu said. "This is why DOJ needs to disavow the mythology of the '60-Day Rule' and simply follow the evidence and law. If they find evidence of criminal wrongdoing that they can prove beyond a reasonable doubt then they should bring the case immediately."

Wu thusly concluded that "fear of being accused of corrupt political motivations cannot be DOJ’s guiding star in the midst of unprecedented twin threats to national security and our elections. The possible dangers posed to our country by such threats is so grave that every delay may cause irreparable harm and the DOJ needs to understand that trying to avoid the appearance of looking political by doing nothing can end up being political."

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