Above, Bush AG Michael Mukasey, who issued '60-day rule' in 2008.
By Paul Sperry, RealClearInvestigations
August 6, 2020
The Justice Department's so-called 60-day rule, which prohibits prosecutors from taking overt steps in politically charged cases within 60 days of an election, has its origins in the George W. Bush administration and has been invoked by attorneys general in election years since.
President Trump's Attorney General, William Barr, is under pressure to follow it this year, meaning official revelations or conclusions from the so-called Spygate probe by U.S. Attorney John Durham would have to be made public by the Friday before Labor Day, or Sept. 4., or wait until after the election.
But the “60-day rule” is a bit of a misnomer, because there is no written deadline. "Nevertheless, the department has a longstanding unwritten practice to avoid overt law enforcement and prosecutorial activities close to an election, typically within 60 or 90 days of Election Day,” the Justice Department’s inspector general, Michael Horowitz, said in a 2018 review of the policy.
President Bush's attorney general, Michael Mukasey, issued the first “Election Year Sensitivities” memo to all DoJ employees in March 2008, advising them that politics should play no part in the timing of criminal charges, and that indictments should never be brought “for the purpose of” affecting an election. It’s not clear what prompted the new guidance at the time, but it came as prosecutors were preparing an indictment against GOP Sen. Ted Stevens of Alaska, who was up for re-election that November.
The lead prosecutor in the Stevens case, Matt Friedrich, cited the Mukasey memo at Justice's July 2008 press conference announcing the indictment against Stevens for allegedly making false statements about personal gifts he received from a contractor. “That policy has been followed to the letter in this case,” he asserted. Stevens ended up losing the race, only to have his indictment later dismissed for prosecutorial misconduct.
Obama Attorneys General Eric Holder and Loretta Lynch reissued the Mukasey memo in March 2012 and April 2016, respectively. And Barr issued his own memo in February of this year, with “additional requirements for the opening of certain sensitive investigations,” while reiterating the longstanding policy codified in the three previous memos.
Barr augmented the rule chiefly by requiring written approval from this office before opening a criminal case on a "declared candidate for president or vice president, a presidential campaign or a senior presidential campaign staff member or adviser,” or any declared congressional candidates.