One month until voters head to the polls, the Justice Department is caught in a thorny intersection of election-year politics and continuing the work of the nation’s top law enforcement agency – trying to maintain its reputation for impartiality while also continuing to pursue the prosecution of Donald Trump, the Republican presidential candidate.
That tension culminated Wednesday, when special counsel Jack Smith’s 165-page summation of evidence and an analysis of why Trump is not immune from federal prosecution for his efforts to overturn the 2020 election was made public by the judge overseeing the Washington, DC, criminal case against the former president.
The brief’s timing is already being cast by some pundits as an “October surprise” – a political revelation coming the month before Election Day, filed after the Supreme Court’s ruling this summer granting the former president partial immunity.
Trump has already lambasted the filing, accusing President Joe Biden’s Justice Department in several social media posts Wednesday evening of trying to influence the election in Vice President Kamala Harris’ favor. Trump claims Smith’s brief violates a long-standing department practice of keeping quiet before a national election.
During the Justice Department’s so-called “quiet period,” prosecutors try to avoid any public statements and actions that could be perceived as political in the weeks before the November election. The quiet period is part of an effort to make clear that the Justice Department, and its investigations, are not motivated by politics.
“THEY DISOBEYED THEIR OWN RULE IN FAVOR OF COMPLETE AND TOTAL ELECTION INTERFERENCE,” Trump wrote in one post.
But the filing was released by federal Judge Tanya Chutkan – who is not beholden to the quiet period – before the window begins this weekend, and Smith was following the judge’s order setting the deadline for his brief to be filed. Chutkan is deciding how this case will proceed after the Supreme Court ruling.
Moreover, the timing for proceedings to resume in this case was set in motion months ago. As Trump pushed for delays, the Supreme Court rejected a request by Smith to speed up its consideration of the immunity question. Once the high court ruled in July, the case was sent back under the rules to Chutkan a month later, with the election quickly approaching.
Smith’s office declined to comment.
While the quiet period happens before every national election, there are few written policies about what prosecutors can and can’t do as that election approaches. There aren’t even written rules about how long before an election any extra precautions should be taken. In fact, there is confusion within the Justice Department over when the quiet period actually begins – and whether it should start 30 or 60 days out.
Instead, the department’s staff abide by a custom that tends to slightly change in each election cycle and with each administration. And the once-innocuous DOJ practice is now a focus of Trump’s efforts to return to the Oval Office.
It’s not the first time the Justice Department and federal law enforcement have been thrust into an election cycle. Eleven days before the 2016 election, then-FBI Director James Comey said in a letter to members of Congress that the bureau was investigating additional emails in the investigation around Hillary Clinton’s handling of classified information.
That investigation was eventually closed without charges, and the Justice Department’s internal watchdog released a scathing report saying that Comey’s actions were “extraordinary and insubordinate” but that he was not motivated by political bias.
Still, Trump benefitted, exploiting Comey’s disclosure for the remainder of the campaign. Clinton allies for years blamed the former FBI director in part for her election loss.
There is a written department policy that says “federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
But there are also unwritten department norms about how prosecutors should handle taking law enforcement actions – or “overt” investigative steps like executing a search warrant or bringing charges – against a candidate near Election Day.
Those precautions are narrow – focused on media appearances, attendance at events alongside politicians, investigative efforts or charging decisions that could be viewed as political. They don’t affect most of the department’s day-to-day work.
The quiet period doesn’t stop the Justice Department from bringing cases or speaking publicly about other matters unrelated to the election. Prosecutors will still investigate, charge and try cases across the country, and the Justice Department can still choose to make public statements about verdicts or indictments.
In cases where the department has already brought charges that involve political figures or campaigns long before Election Day – like the cases against Trump, including Smith’s separate prosecution in Florida over the former president’s handling of classified documents that he is trying to revive on appeal – prosecutors are not limited in how they continue to litigate a case. That means they can do things like file legal briefs, make arguments to a judge or cut deals with defendants.
And while the Justice Department controls the timing of its investigative efforts, it does not control a case’s schedule once someone is indicted. Federal judges, who are not employees of the Justice Department or even the executive branch, set those schedules.
Trump has long tried to use the upcoming election as a reason to toss out his DC federal case and is now pointing to the 165-page legal brief from Smith as evidence of the DOJ’s efforts to interfere in politics.
Smith as well as Attorney General Merrick Garland have repeatedly denied allegations that the prosecution is political or intended to sway voters.
Prosecutors on Smith’s team have addressed the department’s quiet period in court, with one telling a judge that the practice governs whether “we can bring a new case within whatever period of time before an election,” and “does not apply to cases that have already been charged.”
Still, Trump’s attacks are likely to continue over the next month. As soon as next week, Chutkan is expected to release redacted versions of evidence, including jury transcripts and notes from FBI interviews conducted during the yearslong investigation underpinning Smith’s case.
The election interference case is in a critical phase. Trump’s team will respond to Smith’s brief. Eventually, Chutkan must decide how, or if, the case will move forward.
As part of those decisions, Chutkan has ordered extensive briefings about what evidence prosecutors have against Trump and whether that evidence is admissible because of presidential immunity issues.
Chutkan alone controls when those filings are due and if they will be made public, and she has made clear that she will not take the election into consideration as she makes those decisions.
“This Court is not concerned with the electoral schedule,” Chutkan told Trump’s attorney at a recent hearing. “Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not – that’s nothing I’m going to consider.”
