WASHINGTON – A Justice Department memo suggests Donald Trump won’t face any federal indictment over the insurrection Jan. 6, 2021, before the election in November, legal analysts said.
Attorney General Merrick Garland reminded U.S. Department of Justice officials that extra steps are required before action can be taken in politically sensitive cases during the fall election season – and unprecedented charges against a former president would qualify.
Legal analysts said Garland restated a long-standing policy that discourages the announcement of investigations or indictments of major political figures on the cusp of elections because it could be construed as interference.
In the memo May 25, Garland:
- Cited policies “governing the opening of criminal and counter-intelligence investigations by the Department, including its law enforcement agencies, related to politically sensitive individuals and entities,” especially during campaigns.
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- Did not mention Trump or any other politician who may be under investigation. Justice Department officials who charged hundreds of people for storming the U.S. Capitol on Jan. 6, 2021, haven’t said whether their investigation touches on Trump specifically.
- Reminded officials they are subject to the federal Hatch Act, which “generally prohibits Department employees from engaging in partisan political activity while on duty, in a federal facility, or using federal property.”
Takeaways: Garland reminded prosecutors that they need extra approvals for cases involving political figures in the weeks leading up to an election.
What they’re saying:
- Anti-Trump commentators cast the memo – first reported by MSNBC host Rachel Maddow – as an excuse for inaction against Trump. The Maddow Blog says the memo “doubles down” on the policy of Trump-era Attorney General Bill Barr “against investigating candidates without approval.”
- Attorneys, including Trump critics, noted that the caution makes sense because the department wants to avoid the perception of politically motivated investigations.
- In a video posted on Twitter, former U.S. Sen. Doug Jones, D-Ala., a former federal prosecutor, described the Garland guidance as “a reaffirmation of what has been Justice Department policy for a long, long time.”
- Former federal prosecutor Renato Mariotti tweeted, “Yes, Garland extends Barr’s instruction that investigations of presidential candidates and their senior aides must be cleared by the AG. That would typically happen in any event.”
- Mariotti said, “Although that is not explicitly stated in the policy, I agree that we are unlikely to see an indictment of Trump or his associates before November.” He added, “I don’t consider Garland’s memo to be a significant change from DOJ policy before Biden’s presidency.”
Bottom line: Few people expect the Justice Department to indict Trump in the weeks before the November midterm election.
Bear in mind:
- As in previous guidance, the Garland memo does not foreclose all investigative action. It only calls for more consultation before moving forward in a politically sensitive case.
- Garland’s guidance applies to the federal Department of Justice, not to law enforcement officials in Georgia.
- An Atlanta-based grand jury is investigating Trump’s attempts to pressure state election officials to overturn his election loss to Joe Biden in Georgia.
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Bottom line: The Garland memo tells employees that “we must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and non-partisanship.”