The Department's Election Year Sensitivities Policy

¶The staff of the Office was deeply familiar with and committed to the Department's election year sensitivities policy, as it included fraud and public corruption prosecutors with many years of experience working in and leading PIN. The Special Counsel himself and one of his Counselors had served as Chief of PIN, two of the attorneys had been deputy chiefs in PIN, and two other attorneys in the Office had been trial attorneys in PIN. Collectively, prosecutors in the Office had many years of experience providing training, advice, and guidance to prosecutors and law enforcement agents throughout the Depmiment on how to comply with the Department's election-related policies. In fact, the Counselor in the Office who had previously served as Chief of PIN was one of the drafters of the first election year sensitivities memorandum issued to Department attorneys.

¶The Depaiiment's policy regarding elections has two overlapping components. The first is focused on the prosecutor's purpose: it prohibits prosecutors from taking any action or timing any action for the purpose of affecting an election. Justice Manual § 9-27.260 and § 9-85.500. That flat prohibition applies to all actions by prosecutors and at all times during an investigation or prosecution. The second and overlapping component focuses on safeguarding the Department's reputation for fairness and nonpartisanship, requmng that prosecutors take particular care in an election year and consult with PIN when an action is "likely to raise an issue or the perception of an issue." Justice Manual § 9-85.500.²⁵²²⁵² The Department's election-related policies were first developed in the context of investigations involving ballot fraud, where PIN's Election Crimes Branch has for decades maintained a written non-interference policy that applies only in the context of ballot fraud investigations. See Federal Prosecution of Election Offenses (8th ed. 2017) at 84-85. That policy, which precludes certain investigative actions in a ballot fraud investigation until after the election to which the investigation relates is completed and certified, was codified in the Justice Manual in August 2022. See Justice Manual § 9-85.300. Because the 2020 presidential election had been completed and certified before our investigation began, the ballot fraud policy had no application to the Office's work.Show full note

¶These policies are well-established within the Department. In 2008, in the wake of allegations and investigations concerning politicization in the Department,²⁵³²⁵³ See Joint Report of the Department of Justice, Office of Professional Responsibility and Office of the Inspector General, An Investigation ofAllegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General (July 28, 2008), https://oig.justice.gov/sites/default/files/legacy/special/s0807 /final.pdf. and recognizing that there was uncertainty regarding the terms of the Department's policies and practices in election years, the Criminal Division and PIN evaluated the feasibility of establishing a specific and definitive set of rules regarding the duty to avoid interference with elections in the run-up to an election. While prosecutors had long been advised to exercise particular care in politically sensitive cases in the two or three months immediately prior to an election, the Department had never had a formal 60-day or 90-day rule that governed such situations.²⁵⁴²⁵⁴ The background regarding the election year sensitivities policy and the so-called "60-day rule" was reviewed by the Department of Justice Office of the Inspector General in its June 2018 report, A Review of Various Actions by the Federal Bureau of Investigation and the Department of Justice in Advance of the 2016 Election, at 16-18, https://oig.j ustice .gov Is ites/default/files/reports/ 18-04. pdf.Show full note As part of its evaluation in 2008, the Department considered whether to codify a particular rule, but ultimately concluded that the best course was, instead, to provide guidance in the form of an Attorney General Memorandum addressing the need for particular care to protect the Department's reputation for impartiality in an election year, and setting forth in writing the core principle that prosecutors and agents may not act for a political purpose.

¶On March 5, 2008, Attorney General Michael Mukasey issued the first Election Year

¶Sensitivities Memorandum setting forth this guidance. In relevant part, the Attorney General

¶Memorandum stated:

Department of Justice employees are entrusted with the authority to enforce the laws of the United States and with the responsibility to do so in a neutral and impartial manner. This is particularly important in an election year. Now that the election season is upon us, I want to remind you of the Department's existing policies with respect to political activities.

The Department of Justice has a strong interest in the prosecution of election fraud and other election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process. As Department employees, however, we must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality and nonpartisanship.

Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department's mission and with the Principles of Federal Prosecution.

If you are faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election, please contact the Public Integrity Section of the Criminal Division for further guidance.

¶Memorandum from Michael Mukasey, Attorney General, Election Year Sensitivities (Mar. 5,

¶2008).

¶Since 2008, Attorneys General have issued memoranda containing substantially the same guidance to prosecutors and agents in each election year.²⁵⁵²⁵⁵ See Memorandum from William Barr, Attorney General, Election Year Sensitivities (May 15, 2020) (adding language to the Election Year Sensitivities memorandum to make clear that the policy applied not only to investigative and charging actions, but also to public statements by prosecutors and law enforcement agents). In August 2022, just three months before the Attorney General appointed the Special Counsel, the Department codified its election year policies in the Justice Manual:

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. Such a purpose is inconsistent with the Department's mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.

¶Justice Manual § 9-85.500; see also id. § 9-27.260 (adding the election year sensitivities policy to the Principles of Federal Prosecution).

¶Implementation of the election year sensitivities policy can raise challenging questions. Taking action may be viewed as hurting a candidate, while refraining from action may be viewed as helping that candidate. This challenging landscape counsels in favor of structuring and timing investigations in a manner that enables prosecutors and agents to avoid these issues as much as possible and do what they do best: focus on the needs of the case. Consistent with that, PIN often counsels prosecutors to move their investigations along promptly and avoid unnecessary delay that could needlessly place them in the position of deciding whether to take overt action or bring charges in the period immediately before an election. Because of the Office's deep familiarity and experience with these policies, it focused on completing both of its investigations promptly and making timely charging decisions, long before the election.

Pre-Indictment Procedures

¶During the investigation and prosecution of this case, the Office consulted regularly with PIN. For example, because the Election Case involved election fraud charges under 18 U.S.C. §§ 241 and 371, the Office consulted with PIN and its Election Crimes Branch prior to returning the Election Case indictment in the District of Columbia, as required by Justice Manual § 9- 85.210 (Violations of Campaign Financing Laws, Federal Patronage Laws, and Corruption of Elections-Consultation Requirement). In addition, the Office consulted with PIN regarding investigative steps that involved gathering evidence connected to congressional staff, pursuant to Justice Manual § 9-85 .110 (Investigations Involving Members of Congress). As discussed below in Section V.A.2, the Office also consulted PIN regarding issues that arose in litigation involving the Speech or Debate Clause, U.S. CONST. art. I, § 6, cl. 1, a unique constitutional protection that provides a form of immunity to legislative acts by Member of Congress and their staff. See, e.g., In re Press Application for Access to Judicial Records Ancillary to Certain Grand Jury Proc. Concerning Former Vice President Jvfike Pence, No. 23-mc-35, ECF No. 11-5 at 19 (D.D.C. June 9, 2023) (publicly released Mar. 27, 2023, Memorandum Opinion) (application of Speech or Debate privilege to Vice President when acting as President of the Senate); In re Sealed Case,⁸⁰⁸⁰ See ECF No. 252 at 61 & n.324; SCO-01576281 at 2, SCO-01576283 at 2 (Email from Co-Conspirator 2, with attachment l 0/16/2020); SCO-1298630 I. F.4th 355 (D.C. Cir. 2023) (application of Speech or Debate privilege to search of congressman's cell phone). However, because the Office proceeded expeditiously with its investigations and charging decisions, no election year sensitivities consultation with PIN was required prior to returning the original indictment in either the Classified Documents Case in June of 2023 or the Election Case in August of 2023.

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