With unprecedented numbers of Americans starting to cast early votes in the presidential election come mid-September, many eyes are on what Attorney General William Barr and his colleagues in the Justice Department will do. If they abide by a longstanding Justice Department rule of forbearance — sometimes called the 60 or 90-day rule — they will refrain from public indictments or other overt disclosures in cases that could affect the election. Prosecutors would, instead, conscientiously defer such actions until after the public votes.

But that does not appear to be where Barr is headed. The attorney general has recently made statements that lay the groundwork for inappropriately deploying the Justice Department to damage the Democratic candidate for president, Joe Biden in the coming weeks. It’s by all appearances a highly orchestrated plan.

In this article, I discuss the scope of the Department’s rule of forbearance and how it has applied in practice over several decades. Two of the most significant cases occurred during the 1992 presidential campaign when Barr served as attorney general for President George H.W. Bush. Indeed, those cases illustrate, perhaps better than any other, the scope of the rule and what can go wrong in the wake of the rule’s violation.

I. Barr’s Plan of Action

Before looking at the history, let’s focus on Barr’s recent claims about the scope of the rule, because that goes to the heart of his current efforts.

Barr has set in motion two ongoing investigations of the Obama-Biden administration. In mid-2019, he personally selected U.S. Attorney John Durham to investigate whether U.S. officials acted legally in starting the investigation into Russia’s interference in the 2016 election and ties to Trump campaign associates: the “investigation of the investigators.” Barr did so despite an investigation by the department’s Inspector General (which found the FBI’s investigation was properly predicated and without evidence of political bias) and an investigation by the bipartisan Senate Intelligence Committee (which validated the U.S. intelligence community and the Mueller team’s assessments). Barr also later assigned a spinoff of Durham’s work to U.S. Attorney John Bash, who is now charged with investigating the so-called unmasking of Trump associates by Obama administration officials.

In May of this year, Barr went out of his way to comment on Durham’s ongoing investigation, this time saying he expected Vice President Biden, “whatever [his] level of involvement,” would not be a target of the criminal probe. “Our concern over potential criminality is focused on others,” he added.

The following month, Barr signaled another piece of his plan. Barr claimed that the Justice Department’s longstanding rule of forbearance applies essentially only to indictments of candidates themselves. “The idea is you don’t go after candidates,” the attorney general said. “You don’t indict candidates or perhaps someone that’s sufficiently close to a candidate, that it’s essentially the same, you know, within a certain number of days before an election.”

That conception of the rule is wrong, and Barr knows it.

II. Application of the Rule: The Whitewater Investigation

A criminal matter arising out of Arkansas during the fall of 1992—the famous Whitewater investigation—provides one of the clearest examples of the Justice Department rule of forbearance applying when the candidate is not the target of an investigation, but merely a witness or beneficiary of alleged criminal conduct. As attorney general at the time, Barr played a direct role in the application of the rule, according to what he told Senate investigators in a deposition under oath in 1995.

On Sept. 1, 1992, the Office of the U.S. Attorney for Arkansas received a criminal referral concerning potential financial wrongdoing involving Savings and Loan transactions in which Bill and Hillary Clinton were identified as individuals who stood to benefit from and were potential witnesses to the suspected criminal activity. After conducting preliminary work, the head of the U.S. Attorney’s office, Charles Banks sent a report to Justice Department headquarters (“Main Justice”) describing the case and the alleged perpetrators, and identifying the Clintons as potential witnesses. Two days later, Banks received a communication from FBI Headquarters that he interpreted as pressure to expedite an investigation by taking steps that would likely become publicly known before the election.

That’s when the Department’s rule to defer such actions until after the election kicked in.

On Oct. 16, 1992, Banks sent a blistering letter to the FBI and Main Justice saying such steps could unintentionally affect the election and would accordingly violate longstanding Justice Department policy. He wrote:

“Neither I personally nor this office will participate in any phase of such an investigation … prior to November 3, 1992.”

“The insistence of urgency in this case appears to suggest an intentional or unintentional attempt to intervene in the political process of the upcoming presidential election. You and I know that in investigations of this type the first steps, such as issuance of grand jury subpoenas for records, will lead to media and public inquiries about matters that are subject to absolute privacy. Even media questions . . . all too often publicly purport to ‘legitimize’ what can’t be proven.

For me personally to participate in an investigation that I know will or could easily lead to the above scenario and to the possible denial of rights due to the targets, subjects, witnesses or defendants is inappropriate. I believe it amounts to prosecutorial misconduct and violates the most basic fundamental rule of Department of Justice policy. I cannot be a party to such actions.”

Banks would later reiterate to Senate investigators, “I did not want to try to influence that election even inadvertently, even if it wasn’t intentional. I am not saying someone was doing it intentionally. But … every time we did even grand jury subpoenas for records, that got out in the media.” “I thought my oath of office, and what my moral duty called for” made it necessary to defer any further investigation until after the election, Banks testified in his deposition.

Most important for our purposes, Barr’s statements to the Senate investigators sharply contradict what he has claimed in recent days about the Justice Department rule. In a deposition under oath, Barr claimed that the intention was never to have Banks take public actions until after the election because the department was cognizant that the Clintons were referenced as witnesses or beneficiaries of the underling conduct. He testified, in unequivocal terms, that the Justice Department rule applied directly to this case:

“There are cases where the role of the sensitive figure is such that you wouldn’t think that they would really be ultimately tied up in a thing as subjects or targets, and you would want to assure that the case does not play a role in the election process by assuring that there are no public steps taken. Based on what I knew, and I did not have full information, but based on what I knew, this would fall in that category.”

Barr also testified that he agreed with Banks’ stated position on the need for forbearance. “I know of no basis for questioning that judgment. And I wasn’t prepared to question it,” he said. Barr also told the Senate Select Committee’s investigators that he personally directed the Department to ensure no overt investigative steps or other information getting into the public would occur before the election. (To his credit, the department was successful in keeping a lid on the case until after Americans voted.)

To be sure, Barr pulled a classic move for himself by noting that he “can conceive of the circumstance” in which the rule would not apply. And indeed there are exceptions to the rule in rare circumstances (more on that later). But he reaffirmed that the rule applied to the Whitewater-Clinton case. What’s more, as the passage above shows, Barr appeared to suggest the rule applies even more clearly when the candidate is a witness who “you wouldn’t think that they would really be ultimately tied up in a thing as subjects or targets.”

III. Violation that Proves the Rule: Indictment of Former Defense Secretary Weinberger

In a situation that bears a remarkable resemblance to Durham and Bash’s ongoing investigations of the Obama-Biden administration, Independent Counsel Lawrence Walsh was investigating actions of the Reagan-Bush administration while Bush was running for reelection in 1992. With the election days away, Walsh issued an indictment of a former senior official from the Reagan administration in a manner that clearly violated the Justice Department’s rule instructing prosecutors to defer charges or overt disclosures that could affect an election. It was a flagrant violation even though Bush was not named as anything close to a target in the matter.

“There are cases where the role of the sensitive figure is such that you wouldn’t think that they would really be ultimately tied up in a thing as subjects or targets, and you would want to assure that the case does not play a role in the election process by assuring that there are no public steps taken. Based on what I knew, and I did not have full information, but based on what I knew, this would fall in that category.”
– William P. Barr, deposition hearing, Nov. 13, 1995

As evidenced by then-Attorney General Barr’s response at the time, Walsh’s violation proved the existence of the rule of forbearance. The dramatic effects of the violation on the election also proved the sacred reasons for having the rule.

In June of that year, Walsh had already indicted former Defense Secretary Casper Weinberger on five counts related to the Iran-Contra scandal. On the Friday before the presidential election, Walsh submitted an additional indictment which included a reference to the former defense secretary’s personal diary suggesting Bush supported some of the underlying conduct when he was Vice President. A note in the diary from a meeting in January 1986 said, “VP favored.” Some of the lawyers in Walsh’s office objected to including the note or submitting the indictment prior to the election, but they also reportedly decided not not raise the concerns with Walsh directly or insist on a special meeting with all the staff. Walsh moved ahead and may have changed the course of history.

I spoke with Stuart Gerson who served as Barr’s assistant attorney general at the time. His summary of the episode bears quoting at length:

The rule has been applied, as a prudential matter of restraint, many times in congressional and presidential elections. The most significant of matters in which it was not applied had to do with the investigation in 1992 led by Independent Counsel Lawrence Walsh. On October 30, 1992, just days before the presidential election on November 3rd, Walsh obtained and published a grand jury re-indictment of Cap Weinberger for perjury connected to the Iran-Contra investigation. This superseded an earlier indictment, and its singular difference from the earlier one was a phrase referencing President George H.W. Bush. At that time, Bush was closing rapidly in the polls as against candidate Bill Clinton. In the few days between the announcement and the election, Bush lost approximately eight percentage points in the consensus of polls, and this margin would have reelected him, even with Ross Perot’s having siphoned off a determinative margin as well. Walsh had a political purpose in doing this. Indeed, the superseding indictment was dismissed by the court several months later as having been outside the statute of limitations. Bush later pardoned Weinberger. Because the Independent Counsel statute was in force at the time, this was not an event within the ambit of the Justice Department, but it is something with which both Bill Barr and I had great familiarity, mine coming in discussions with the President in which he vented his anger.

The indictment was of Weinberger, who wasn’t a candidate or a relative of one, or even a member of the administration. So Barr should know that his limitation on the confidentiality proviso is not well taken, and that a violation of the well-established convention can indeed produce considerable effect in an election.

The reaction to Walsh’s transgression reinforced the rule of forbearance inside the government.

White House Counsel Boyden Gray was reportedly “stupefied that Walsh would intrude in an election. It was one of the most outrageous public acts he had ever seen.” Republicans on the Judiciary Committee (including today’s Chuck Grassley) were incensed. They demanded Barr appoint a new independent counsel to investigate Walsh.

Barr’s response to Walsh’s action was revealing.

The day after the election, the president invited Barr to a one-on-one meeting in the Oval Office to discuss what Walsh had done. Bush asked this attorney general, “What is your reaction?”

According to Bob Woodward’s 1999 book, Barr responded unequivocally:

Barr said he thought it was a crude political act with a political motive. Career Justice Department prosecutors would never bring out such information in an indictment just before an election. Barr said he wanted to dismiss Walsh. He knew the law well. He could remove Walsh for “misconduct.”

In a letter dated December 10, 1992, Barr informed the Senate Judiciary Committee members that he decided not to appoint a new independent counsel on the grounds that the Department could handle the matter itself and that Walsh was not within the statutory definition of officials subject to investigation by an independent counsel. Barr informed the Senators of a powerful step he had decided to take instead: “The allegation has been referred to the Criminal Division, which will take any appropriate action.” The Associated Press’s headline read, “Justice Criminal Division To Look At Timing Of Iran-Contra Indictment.”

As an aside: for those who might try to claim that Walsh’s actions show the absence of the rule, it’s notable that he was able to carry out the unusual action because he was an Independent Counsel beyond the bounds of the Justice Department’s control. His indictment does not readily stand for an example of Department practice.

Gerson said of the Walsh episode, “This remains, to me, the most significant example of why, as a matter of custom and policy, DOJ should not intervene in elections and such improper intervention is not to be limited to the candidate and his family.”

Barr said he thought it was a crude political act with a political motive. Career Justice Department prosecutors would never bring out such information in an indictment just before an election. Barr said he wanted to dismiss Walsh. He knew the law well. He could remove Walsh for “misconduct.”
– Bob Woodward, Shadow (1999)

IV. A Well-Established Understanding and Practice

The broad scope of the rule of forbearance is reflected in the settled understanding and practice of federal prosecutors across the country, including in the District of Connecticut where John Durham has worked for decades. I interviewed several former federal prosecutors who described their acute awareness of the rule while they were in government and the broad scope of the rule in terms that contradict Barr’s recent construction.

The views of these former federal prosecutors are instructive.

Chris Mattei, former Chief of the Financial Fraud & Public Corruption Unit for the U.S. Attorney’s Office for the District of Connecticut:

“DOJ prosecutors are guided by a longstanding and vital principle that they should refrain from taking overt investigative or prosecutorial actions that could affect an upcoming election. This principle protects DOJ from political influence, insures that DOJ’s authority is not misused for political purposes, and strengthens public confidence that DOJ’s actions are not motivated by partisan political concerns. Because this policy aims to steer DOJ clear of elections generally, it does not apply only to DOJ actions toward candidates or their inner circle.”

Liam Brennan, former head of the Public Corruption Task Force for the U.S. Attorney’s Office for the District of Connecticut:

“It is the standard practice of the Department of Justice to be highly sensitive to the impact any of its actions might have on the democratic process. Traditionally, public corruption prosecutors and agents will avoid any overt actions close to the time of an election that may give the appearance of favoritism or possibly affect the election’s outcome. This may include postponing charges against candidates or their intimate associates. It can also involve delaying other activity – if possible – that may become public and impact an election, such as postponing charges against other individuals or issuing subpoenas and search warrants.”

Jennifer Rodgers, former Deputy Chief Appellate Attorney of the U.S. Attorney’s Office for the Southern District of New York:

“In my experience, prosecutors work hard to avoid allowing law enforcement to impact politics (and vice versa). This includes careful compliance with the longstanding DOJ guidance to avoid any overt investigative or charging actions if at all possible in the 2-3 months before an election if those actions might affect the election. Obviously, that requires avoiding action against a candidate for election, but conscientious prosecutors construe the guidance more broadly, to encompass any actions that would affect an election, not just actions directed against a candidate personally. Thus of all the examples of charges by SDNY against individuals associated with political figures in recent years — like the cases against Joseph Percoco (Secretary to Governor Cuomo), campaign officials associated with Mayoral candidate John Liu, donors associated with Mayor Bill DeBlasio, and figures associated with President Trump like Michael Cohen, and, more remotely, Lev Parnas and Igor Fruman — all were brought well ahead of any possibly relevant election.

A former federal prosecutor who handled corruption cases, including high-profile matters, and served under both Republican and Democratic administrations:

“At the US Attorney’s Office, we regularly followed what we called “the 60 day rule” as a long-standing policy to not do anything to influence the election. Obviously that included candidates themselves but it also was extended to others close enough to the candidate that it could impact the election, so as to not give any appearance of partisanship in the use of DOJ’s powers. In my experience, this rule applied evenly, regardless of political affiliation.

We would get formal memos from Main Justice reminding us about election sensitivity leading up to presidential elections (though not citing any actual 60-day rule, it was understood and applied as a rule), and we also followed the policy year-round, each year, as to any state and local elections, including primaries and general elections.

I am not aware of the policy ever being violated, it was understood as an unequivocal ethical requirement. We would have indictments ready before that window or we would wait. For examples, you might look at indictments of federal, state and local public officials brought in November and December over the years, most of which would indicate an investigation that predated the election cycle (since federal corruption investigations usually take at least several months and sometimes years).”

Mimi Rocah, former Assistant United States Attorney for the U.S. Attorney’s Office for the Southern District of New York:

From experience we understood the rules to cover any charges that could affect an election and not limited to charging a specific candidate.

Notably, with a differing view, Luke V. Cass, former a Senior Trial Attorney with the Public Integrity Section of the Criminal Division:

“Consistent with the DOJ’s “Election Year Sensitivities” memo, law enforcement officers and prosecutors should never select the timing of an investigation or criminal charges to influence an election, or to give any advantage to a specific candidate or party. That’s a Cardinal rule and the federal agents and prosecutors that I worked with were all of the highest integrity. I do not think any of them would be party to, or stand for, that type of improper conduct, which was antithetical to our mission to seek justice and to our values of living in a democracy.

Attorney General Holder’s memo was thoughtful guidance to prevent DOJ activities from interfering with free and fair elections, but I would have to agree with Attorney General Barr’s assessment that it is not without limits. The memo itself lists several specific categories of offenses, namely, “the prosecution of election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process.” In my view, it is not a prospective bar on prosecuting anything election-related during an election year. I also note that internal DOJ guidance is not intended to, and does not, create any enforceable rights, or place any limitations on otherwise appropriate litigation options. See Justice Manual § 1.1.200; see also United States v. Lee, 274 F.3d 485. 493 (8th Cir. 2001); United States v. Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999); United States v. Wilson, 413 F.3d 382, 389 (3d Cir. 2005) (all holding the same).

In my experience, every criminal investigation has a rhythm of its own, and that is often what determines timing for several key points such as when proactive investigative steps are taken, or when charges are publicly announced.”

Finally, former FBI General Counsel, Andrew Weissmann and I recently provided an example of the scope of the forbearance rule, drawing from Weissmann’s forthcoming book, which is his insider account of the Mueller investigation. We wrote:

“Take an example from the Mueller investigation. The special counsel’s office knew it could not indict Russian military intelligence officials for the 2016 hacking operation in the run-up to the 2018 midterm elections. That’s right: The office could not indict the Russians — not only political candidates or aides. Such matters were so politically fraught that such an action by the special counsel might affect the election.”

V. Exceptions to the Rule

The rule of forbearance is a strong default rule to which there are exceptions for extraordinary urgent matters. For example, the prohibition may give way if prosecutors need to stop a suspect from fleeing the country or if there’s an exigent threat to public safety.

Carrie H. Cohen, who prosecuted public corruption cases as an Assistant United States Attorney for the Southern District of New York outlined the range of limited exceptions: “Of course, as a practical matter, the Department of Justice’s practice of not announcing indictments that may reasonably affect an election within 60 days of an election may give way to exigent circumstances, such as if the delay might endanger someone’s safety, critical evidence might be destroyed, or the need to prevent other types of serious crimes from occurring.”

In practice, the invocation of any exception is rare. Mattei, the former Chief of the Financial Fraud & Public Corruption Unit for the District of Connecticut, said, “There may be times where, after due consideration, this principle must yield to an urgent public safety threat or an investigative imperative, but such exceptions are rare.” A former government official told me of “the one exception” in their years of experience, “which really isn’t even much of an exception. We seized evidence in a case when we were up on a wire and heard evidence that it was about to be destroyed intentionally. So we didn’t feel we could wait.”

As Weissmann and I wrote, there is no apparent urgency in the Durham and Bash investigations that could justify moving now rather than waiting until after the public votes for its next president. After the election would also likely be a far more conducive environment – no matter who wins the White House – for airing credible allegations that would need to be pursued in the future in any case.

Indeed, the absence of any emergency to justify departing from the longstanding rule is likely the reason that Barr has tried to pretend the default rule is exceedingly narrow. Rodgers, the former Deputy Chief Appellate Attorney for SDNY, explained the connection:

There doesn’t seem to be anything related to Durham’s investigation of the public officials who commenced the Russia Investigation that would justify bringing charges before November’s election at this point. … Durham’s investigation appears to involve no allegations of ongoing criminal conduct, no victims suffering mounting losses, no likelihood of targets fleeing or evidence dissipating; in short, there are no circumstances that would justify bringing a politically explosive case less than two months before an election, except the obvious one of trying to help the President win that very election.

Perhaps for that reason, Barr dissembles about the DOJ policy, claiming that it applies only when the target is a political candidate. This makes no sense at all. … The goal is to avoid impacting elections at all, not just to give candidates themselves a free pass from charges in the couple of months before they stand for office.

Barr knows the true scope of the rule though he has tried to bury it. With so many Justice Department alums and now the broader legal community and public understanding the truth as well, the question is whether others in the department will violate their oaths and do lasting damage to their reputations by participating in Barr’s current course of action.