Taking on Trump and Hunter Biden: What to do with cases that could change elections?

Will Donald Trump be charged with a crime? Will Hunter Biden be indicted? Those questions may be answered in due course, but due course is not likely to be anytime in the next two months. 

With Labor Day behind us and the November midterm elections just over the horizon, the “60-day rule” against major prosecutorial moves is triggered, meaning … well, it’s not clear exactly what it means, probably because there is no rule. 

In the interests of avoiding the specter of having elections decided by law enforcement actions, the Department of Justice (DOJ) follows loose guidance that cautions against taking major public steps in investigations that could influence political campaigns. The objective is to forfend such scandals as Special Counsel Lawrence Walsh’s nakedly political and substantively meritless indictment of former Reagan Defense Secretary Casper Weinberger just four days before the 1992 presidential election. Shortly after President Reagan’s successor, then-President George H. W. Bush, lost that election to President Bill Clinton, a federal judge threw out the indictment over legal shortcomings. Bush ultimately pardoned Weinberger in connection with the Iran-Contra affair that Walsh spent years investigating. 

It does not take much deliberation to grasp why the 60-day guidance is admonitory rather than mandatory. Plainly, there are some situations in which it would be irresponsible for the DOJ to refrain from law enforcement actions that could become public in a politically fraught case. For example, if there were legitimate fears of evidence-tampering and -destruction, or of witness intimidation, it would be irresponsible for prosecutors to turn a blind eye just because an election was on the horizon. Also, if the investigation involved a continuing crime, as opposed to a post facto probe of a completed crime, prosecutorial delay would contribute to additional law violations against innocent victims.  

Some politically fraught cases, moreover, involve potential threats to American national security — a concern the Justice Department has highlighted as its rationale for seeking a judicial search warrant to search former President Trump’s Mar-a-Lago estate. We need not venture a premature judgment on whether that concern was valid. For present purposes, the point is that, in principle, it would be wrongheaded in national security cases for law enforcement officials to drag their feet in a manner that prioritized the political calendar over protecting defense secrets, and the methods and sources for obtaining them. 

In my many years in federal law enforcement, my objection to the 60-day rule was more basic: Failing to take action can be just as prejudicial as taking action. Let’s say the FBI had overwhelming evidence that a candidate for public office was taking bribes or involved in a fraud scheme, and let’s assume that the evidence was sufficiently compelling that, in an ordinary case, arrest and indictment would proceed. It would be perverse for the suspected politician to get extra solicitude — consideration that the average person would not get — because he is seeking an office of public trust that, the evidence shows, he is unfit to hold. 

Obviously, I am not saying that consequential action ought to be taken on the basis of weak evidence or, a la Walsh, legal deficiencies. I am simply saying that when an investigation has reached the point where charges are appropriate, the presumption should be in favor of filing charges. Otherwise, the public would be denied information that would be given in a normal case, and we could end up with a corrupt person in office. 

Because there actually is no written 60-day rule, there is also some vagueness on the matter of to whom the “rule” purportedly applies. In the months before the 2020 election, for example, then-Attorney General Bill Barr took pains to say that no one potentially implicated in prosecutor John Durham’s “Russiagate” investigation was on the ballot; ergo, the guidance against taking major investigative steps (including possible charges) on the eve of an election did not apply. The public took this to mean that then-candidate Joe Biden was not a subject of the probe, but that Durham might file charges against other former officials. 

Nevertheless, an investigative subject need not be on the ballot for law enforcement actions to have an impact on elections. Obviously, Biden’s poll numbers have ticked up a bit, as have polls forecasting the midterm prospects of congressional Democrats, in the past four weeks during which controversy over the Mar-a-Lago search has been in the public spotlight. The fact that Trump is not on the ballot has not stopped Democrats from treating the midterms as if he were.  

Analogously, Hunter Biden was not on the ballot in 2020 but Democrats and their media friends labored zealously to keep scandalous stories about him out of the public eye in the campaign’s closing weeks. They understood that potential law enforcement influence over the election’s outcome did not necessarily hinge on whether Biden fils was a candidate. 

In any event, rather than a 60-day-rule, we should see the Justice Department as aspiring to a rule of reason: In the absence of good cause, do not take unnecessary public action that could unfairly prejudice one side of an election campaign; but also, do not refrain from taking arguably necessary public action when omission would damage the public interest, even if that means the action may have some impact on elections. 

Prior to the midterms, I don’t expect consequential action, such as indictments, in the investigations involving Donald Trump and Hunter Biden. But proper law enforcement actions should not be seen as prohibited, either. Over the past eight years, we’ve had too many instances of investigators trying to game the electoral calendar. They should just stick to law enforcement. It’s a hard enough job. 

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.