August was riddled with speculation whether and when Special Counsel Robert Mueller might issue a report or take further major action in his investigation into Russian interference in the 2016 election. The clock was ticking toward a 60-day window before the Nov. 6 midterm elections, a period when the Justice Department traditionally avoids significant public steps that might influence – or give the appearance of trying to influence – the vote.

But Sept. 6 came and went, and still no Mueller report or further major indictment. At least nothing public. Now, less than four weeks out from Nov. 6, just how much does this standard of avoiding major investigative actions before an election tie Mueller’s hands, and is there anything that might argue in favor of a pre-election surprise? Could, for example, efforts by Trump affiliates to obstruct the investigation before Nov. 6 rolls around force Mueller’s hand?

Certainly, James Comey is familiar with the position Mueller is in. As FBI director, Comey made the fateful decision less than two weeks before the Nov. 8, 2016, election to notify Congress that he was reopening the investigation into candidate Hillary Clinton’s use of a private email server when she was secretary of state. The notification became public, and the backlash was fierce. The allegations that his action helped tip the vote in favor of Donald Trump continue to this day, and the Justice Department’s Office of Inspector General (IG) criticized Comey’s decision in its June 2018 report on the email investigation.

Comey had reasoned that he should reveal the reopening of the probe because he had reported the results when it was closed months earlier, in July 2016. But the IG concluded there wasn’t enough evidence that the new information that had prompted the second look would lead to a different conclusion, and that the additional action didn’t need to be revealed. Indeed, two days before the election, Comey notified Congress that the new information did not change the original findings. By then, Clinton’s camp has lamented, the damage to her campaign had been done.

The IG’s report on the Comey investigation outlines in detail the Justice Department’s practices in heeding sensitivities when deciding about whether and how to take action on an investigation in advance of an election.

“No Department policy contains a specific prohibition on overt investigative steps within a particular period before an election,” the report notes. But 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 IG reported that some officials put the time period at 60 days, while others cited a 90-day timeframe.

In each of the past three presidential election years, the sitting attorney general has issued a reminder memorandum, though not for midterms. The memo includes a recommendation that employees consult the department’s Public Integrity Section, known as the PIN, “whenever an employee is `faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election,’ without regard to the type or category of crime at issue,” according to the IG’s report.

The Department’s Reputation

“One purpose of that policy would be to avoid affecting the election,” according to Bill Corcoran, a former federal prosecutor in the Justice Department’s Criminal Division who prosecuted public officials for 15 years and served as an instructor for 25 years at the department’s Advocacy Institute. Another purpose, he said in an interview with Just Security, is to protect “the department’s reputation as an institution.”

Actions that could evade application of the 60-day precaution might fall along a continuum, according to two other former prosecutors. Grand jury testimony might continue during the period because it most often is secret, and a search warrant might be executed for a target far-enough removed from electoral politics, said Barbara McQuade, a professor at University of Michigan Law School who was U.S attorney for the Eastern District of Michigan from 2010 to 2017. Issuing a report or indictments would likely be at the more sensitive end of the spectrum, though in the case of the Mueller investigation, if the targets were only Russians and there were a pressing reason that the indictments couldn’t be delayed until after the election, the action might very well proceed.

Some U.S. attorneys or criminal division chiefs might be very firm and say no action can be taken within 60 days of an election, said Mary McCord, former acting assistant attorney general and principal deputy assistant attorney general for the Justice Department’s National Security Division. She oversaw the department’s investigation of Russian election interference and possible Trump campaign involvement until early 2017.

“That’s not the way I’ve ever looked at it,” McCord said in an interview. Rather, an investigation involving an elected official, a candidate, someone connected to people running for election or a similar figure in a case where investigative steps might have an impact on the election, “then you’ve got to think very carefully about those steps. You need to consult with more senior officials in the department … The key here is to not ever do something coming out of the Justice Department that could be interpreted to be for partisan purposes.”

Corcoran, who declined to address the Mueller investigation specifically, said that, in general, exceptions to the 60-day moratorium on action would require a compelling case. If the Justice Department learned that material documents or other evidence were about to be destroyed, for instance, prosecutors would seek an exception and issue a search warrant to retrieve the evidence. If the statute of limitations were about to expire on a very serious offense such as a case of corruption, and the candidate is running for re-election, the department might work with the defendant’s counsel to extend the statute of limitations to after the election, in exchange for holding the indictment until then.

“We’re just not going to allow charges to be filed if there’s a good chance they would affect an election,” said Corcoran, now is director emeritus of the Metzger Rule of Law Initiative of the Partnership for Transparency in Washington D.C. “But common sense should prevail – if there is reason why you have to take one action or another, you will do it.”

Indicting Members of Congress in an Election Year

In August this year, in cases unrelated to the Mueller investigation, the Department of Justice issued indictments against two Republican members of Congress, both longtime and fervent supporters of Donald Trump. Chris Collins of New York was charged on Aug. 8 with insider trading, and Duncan Hunter of California was indicted Aug. 21 on campaign finance violations. Both were running for reelection in November, and both indictments predated the 60-day window, though Hunter’s fell within the 90-day timeframe.

After initially suspending his campaign, Collins restarted it in September. Hunter’s indictment came too late to remove his name from the ballot, and he has continued his campaign, lashing out at the charges as politically motivated. A judge in September ruled that his trial could be postponed until after the election.

It’s hard to know what stage Mueller’s investigation is in, as he and his team appear to have been remarkably leakproof. That hasn’t prevented speculation in recent months that he might be finished or close to it, and anticipation spiked in August, as the 60-day pre-election period neared. Buzzfeed’s headline on Aug. 29 was typical: “Everyone’s Watching to See What Robert Mueller Does By Next Friday.” The story even cited Roger Stone speculating publicly that he or Donald Trump Jr. might be indicted before the 60-day clock started.

And as Lawfare Managing Editor Quinta Jurecic reported on Sept. 3, Trump’s personal lawyer Rudy Giuliani was repeatedly pressuring Mueller to effectively put up or shut up – release a final report before the 60-day pre-election period begins, or hold off until afterwards. “Just a few days before 60 day run-up to 2018 elections. If Mueller wants to show he’s not partisan, then issue a report on collusion and obstruction,” Giuliani tweeted on Aug. 25. “They will show President Trump did nothing wrong. Then we will have to admit you were fair. And we will.”

Investigation Winding Down?

More recent speculation that Mueller might be finished has been prompted by the departure of several members of his team, most of whom returned to their regular assignments in the Justice Department. Again, the Special Counsel’s office was characteristically tight-lipped.

And McCord notes that we may not necessarily know – in fact, might be unlikely to know – when Mueller submits his report to Deputy Attorney General Rod Rosenstein. Such a transmittal generally isn’t public, and even if the fact of the submission leaked, it’s highly unlikely that anyone would know what it said during that period, according to McCord, who now serves as senior litigator from practice at the Institute for Constitutional Advocacy and Protection and visiting professor at Georgetown University Law Center.

“I don’t think the mere transmittal of a report to Rod before the election would necessarily be barred” during the 60-day period, because it’s not a public action, McCord said. But Rosenstein likely would lean toward non-disclosure. “If Mueller has submitted his report to Rod – and I have no reason to believe that’s the case – but if he has submitted it, I think Rod would probably think it best to not publicly disclose it until post-election,” regardless of the direction the recommendations go, she said.

McQuade agreed, noting that Mueller is “known for being cautious” and likely would “think carefully about the impact that would have” on congressional elections. “The question is would this have some impact on the way people vote in the midterm elections that is unfair,” McQuade said. By the same token, Mueller and Rosenstein would have to consider whether a decision to refrain from an action before the election would favor some party, especially since none of the principal figures involved are actually on the ballot.

“I’ve been part of these discussions, and they’re very difficult,” said McQuade, a frequent contributor at Just Security.

In any case, the discussions may not involve the Justice Department’s Public Integrity section in this case. Even though special counsels are subject to “DOJ rules, regulations, procedures, practices, and policies,” according to the Congressional Research Service, they report directly to the attorney general or, in this case of Jeff Sessions’ recusal, to Deputy Attorney General Rosenstein. That direct line is particularly relevant in the case of the Mueller investigation because of its sensitive nature and because it involves national security and classified information, McCord said.

Finally, what would happen to the 60-day standard if within that period there were either a concerted effort to undermine public trust in the investigation itself or specific acts of obstruction that were so great that they could impede the ability of prosecutors either to proceed with the investigation after the election or successfully bring a contemplated action?

“The policy requires only that prosecutors refrain from selecting the timing of charges or investigative steps for the purpose of influencing an election,” McQuade said.  “If they had another purpose, including protecting the investigation itself, then that would not violate the policy.”

Specific acts of obstruction likely would “drive a discussion at high levels of the department about what to do,” McCord said. “The answer would depend on a lot of things, including the significance of the investigation being obstructed.  Undermining public trust probably would not change the calculus.”

(Photo by Alex Wong/Getty Images)