There is no ’60-day rule’ — for justice or for elections

Let’s try a hypothetical. 

An incumbent congressman, a Democrat, is running for the seat of his protégé, a retiring Democratic senator. He is in a tight race. He also is neck-deep in a kickback scheme with organized crime figures. That’s why the scheme has come to the attention of the U.S. attorney, appointed by the president at the urging of the same retiring Democratic senator. 

In monitoring a bug they’ve planted in an accounting firm’s conference room that a mafia captain furtively uses for meetings, the FBI has intercepted the captain discussing payoffs with the incumbent congressman — payoffs already made, as well as future payoffs, in exchange for political muscle that paves the way to sweetheart contracts. It is more than enough information for the bureau to run down the leads, develop the paper trail through dummy corporations, and corroborate the payoffs through bank transactions.

The Justice Department has got the congressman dead to rights. He is on tape. Prosecutors have even drafted an indictment, teeming with long quotes from eavesdropping transcripts, in which the lawmaker makes damning statements while consorting with a mobster who sidelines in extortion when he’s not paying off pols.

The case is airtight. But alas, it is mid-September.

So … what?

So, the U.S. attorney instructs the prosecutors to mothball any charges against the congressman. After all, with Election Day just seven weeks away, we wouldn’t want to violate the “60-day rule.”

You’re hearing a lot about the so-called 60-day rule lately. It is Justice Department folklore conveniently cited by activist Democrats who are hot to defeat President Trump and shield the Obama administration from scrutiny. 

Having promoted one of the most blatantly politicized investigations in American history, Democrats now fret that indictments or other disclosures from the Durham probe could damage their prospects in the November election. John Durham is the U.S. attorney for Connecticut, appointed by Attorney General Bill Barr to investigate the origins and conduct of “Russiagate” — the Watergate-redolent name for the Obama administration’s Watergate-redolent Trump-Russia “collusion” farce.

The so-called 60-day rule is guidance observed — except when it’s not — by top officials of the Justice Department. It is said to hold that federal prosecutors should refrain from filing charges against political candidates, or taking “overt” steps in investigating candidates (e.g., arrests or searches that are sure to become public), within 60 days of an election. The “rule” is rationalized as insulation of our democratic process, protecting it from law-enforcement actions that could unfairly prejudice candidates who must be presumed innocent because they haven’t been convicted of anything … yet.

Those scare-quotes around the word “rule” are intentional, as is my allusion to “guidance” — a weaselly substitute for a word such as “rule” or “regulation.” That’s because there is no such rule or regulation.

In tooth-pulling fashion, commentators now invoking this 60-day, er, convention concede that the “rule” is “unwritten.” As a federal prosecutor for nearly two decades, I surmised that this is because, on even cursory analysis, the purported rule is so perverse that no self-respecting government lawyer would want to be seen as responsible for writing it down.

Our hypothetical illustrates why. If a Democratic administration were running the Justice Department, and the Democratic U.S. attorney who owed his lofty post to the retiring Democratic senator blocked the filing of slam-dunk corruption allegations against the senator’s hand-picked successor, would you feel like the integrity of the election had been safeguarded? 

Or would you feel like a “rule” that is too indefensible to write down any place had been invoked by officials with patent partisan incentives — in explicit, unabashed reliance on the political calendar — to rationalize keeping under wraps a criminal allegation that was ripe for charging? 

And when the charges got filed only after the blatantly corrupt congressman had won a squeaker of an election, would you feel that democracy had been preserved? Or would you figure that unelected bureaucrats with partisan connections had withheld damaging information that you should have been able to weigh before you went to the polls?

If investigative and prosecutorial powers are abused, there is always the danger of reputational damage. If it happens in a corruption case, it can end political careers. That said, it is a failing of human nature that we regard abuse that we can see as more egregious than abuse that is hidden. In truth, both are equally wrong. It would be just as inexcusable for prosecutors, relying on the election calendar, to delay charges that should be filed, as to file charges that are flimsy or trumped up. 

Both actions are politicized. Both are designed to misinform voters.

The Justice Department understands this. That’s undoubtedly why no 60-day rule has ever been adopted formally. It is easy to understand that abstaining from action can be just as corrupt as taking action, depending on the circumstances. The legitimate concerns in every investigation are whether prosecutorial power is being used responsibly, and whether an allegation is supported by sufficient evidence. If they are, we should not want prosecutors to keep an eye on the calendar. Politics should not factor in, one way or the other.

Some aspects of the 60-day rule chatter would be amusing if not for the layers of hypocrisy. For example, notice the subtle shift in Democratic talking points. The elusive 60-day rule has always been trained on candidates involved in imminent elections. Now, however, the rule is being massaged into a purported prohibition on any Justice Department actions that could “influence the outcome” of the election.

What gives? Well, in statements over the past several weeks, Attorney General Barr has been quite clear that no candidate on the ballot in November is a subject of Durham’s criminal investigation. That includes former vice president Joe Biden, notwithstanding his participation in an Oval Office meeting on Jan. 5, 2017, at which top officials enmeshed in Russiagate discussed withholding information about the Trump-Russia investigation from the incoming Trump administration. That should be the end of any “60-day rule” gibberish. But it’s not, of course, because Democrats are determined to avoid a Russiagate reckoning of any kind. Consequently, no more focus on candidates. Now, the “60-day rule” is translated: “Don’t dare bring any cases or make any disclosures that could cast the Obama administration in a bad light.” 

When a “rule” is not written, you can make it say just about anything.

Just as remarkable, the “rule” is being invoked by partisans who quite consciously and publicly portrayed Donald Trump as complicit in a traitorous conspiracy with the Kremlin, both before and after the 2016 election. It is not enough to say they did so based on scant evidence. The investigation was fabricated, sprung from bogus information ginned up by the political campaign of Trump’s opponent. As exculpatory evidence inevitably mounted, moreover, the politicized investigation was sustained by the Obama administration and the Mueller special counsel probe — the latter chockablock with partisan Democratic lawyers, some of them Obama Justice Department officials.

The current Justice Department should publish allegations pursuant to law, or it should remain mum, based on the strength of their evidence. The calendar has nothing to do with it.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.