The Justice Department finds itself once more juggling election matters and fulfilling its responsibilities.
That pressure point peaked on a Wednesday, when special prosecutor Robert Jones' 165-page syllabus on evidence and reasons why Trump isn't exempt from federal prosecution for his attempts to overturn the 2020 election was made public by the judge handling the Washington D.C. criminal case against the former president.
Some commentators have labeled this occurrence as an “October surprise” – a notable political disclosure introduced a month before the election. This revelation was published following the Supreme Court's summer decision granting partial immunity to the former president.
Trump has already criticized this submission, accusing Biden's Justice Department, in various social media posts on that Wednesday evening, of attempting to sway the election in favor of Vice President Kamala Harris. Trump argues that Jones' brief violates a long-standing departmental tradition of silence before national elections.
During the Justice Department's so-called "silent period," prosecutors aim to avoid any public declarations or actions perceived as political in the weeks leading up to the November election. This practice is part of an effort to demonstrate that the Justice Department and its investigations are not influenced by politics.
“THEY VIOLATED THEIR OWN RULES IN FAVOR OF COMPLETE AND TOTAL ELECTION MANIPULATION,” Trump allegedly wrote in one post.
However, the filing was released by Federal Judge Tanya Chutkan – who is not bound by the "silent period" – prior to the commencement of this period, and Jones was following the judge's instruction setting the deadline for his submission. Chutkan is responsible for determining the course of this case following the Supreme Court's ruling.
Furthermore, the timetable for resuming proceedings in this case was established several months ago. As Trump asked for delays, the Supreme Court refused Jones' request to quicken its consideration of the immunity issue. Once the high court made its ruling in July, the case was returned, in accordance with regulations, to Chutkan a month later, with the election approaching at a rapid pace.
Jones' office declined to comment.
While the "silent period" precedes every national election, there are few documented departmental guidelines specifying what prosecutors can and cannot do in the lead-up to an election. There's even confusion within the Justice Department regarding when the "silent period" actually begins – and whether it should commence 30 or 60 days prior.
Instead, the department's staff tends to abide by an unwritten custom that may vary slightly in each election cycle and with each administration. This once-innocuous practice has recently become a focus of Trump's attempts to regain the Oval Office.
It's not the first time the Justice Department and federal law enforcement have been drawn into an election cycle. Eleven days before the 2016 election, then-FBI Director James Comey announced, in a letter to Congress, that the bureau was investigating additional emails related to Clinton's handling of classified information.
That investigation eventually reached a conclusion without charges, and the Justice Department's internal watchdog issued a damning report stating that Comey's actions were both "extraordinary and insubordinate" but not driven by political bias.
Despite this, Trump gained an advantage, continually referring to Comey's disclosure during the remainder of the campaign. Clinton supporters have blamed the former FBI director, in part, for her election loss for years.
What is the "silent period"?
A department regulation states that "federal prosecutors and agents may never choose the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of influencing any election, or for the purpose of granting an advantage or disadvantage to any candidate or political party."
However, there are also unwritten departmental norms governing how prosecutors should handle enforcement actions – or "overt" investigative steps like executing a search warrant or bringing charges – against a candidate close to Election Day.
These precautions are narrow – addressing media appearances, participation in political events, investigative endeavors or charging decisions that could be perceived as political. They do not impact the majority of the department's daily activities.
The "silent period" does not prohibit the Justice Department from bringing charges or speaking publicly about issues unrelated to the election. Prosecutors will still investigate, indict, and try cases throughout the country, and the Justice Department is free to issue public statements about verdicts or indictments.
In cases where the department has already brought charges involving political figures or campaigns well before Election Day – such as Trump's DC case, which includes Jones' separate prosecution in Florida concerning the former president's handling of classified documents, which he is currently attempting to reopen on appeal – prosecutors are not limited in how they proceed with the case. This allows them to file legal briefs, argue before judges, or negotiate plea deals with defendants.
Lastly, while the Justice Department controls the timing of its investigative efforts, it does not control the schedule of cases once someone is indicted. Federal judges, who are not employed by the Justice Department or even the executive branch, establish those schedules.
Trump's verbal attacks are expected to persist for the upcoming month. By the beginning of next week, Chutkan is set to publish redacted versions of evidence relevant to the case, such as jury transcripts and records from FBI interrogations conducted during the lengthy investigation related to Smith's case.
The election meddling trial is in a pivotal stage. Trump's legal team will respond to Smith's argument. Ultimately, it falls upon Chutkan to decide whether and how the case will proceed further.
As part of these deliberations, Chutkan has mandated detailed reports detailing the evidence the prosecution has against Trump and whether such evidence can be admitted due to presidential immunity concerns.
Chutkan holds the authority to determine when these submissions are due and whether they will be made available to the public. She has explicitly stated that she will not factor in the election while making these determinations.
"This Court is not preoccupied with the election calendar," Chutkan informed Trump's lawyer during a recent hearing. "Yes, an election is approaching. However, as far as the crucial timing of legal matters and evidentiary issues in relation to the impending election, that's none of my concern."
The ongoing dispute over Trump's attempts to evade federal prosecution for his election interference efforts has sparked intense discussions within the realm of politics. Critics argue that the release of special prosecutor Robert Jones' syllabus violated the Justice Department's traditional "silent period," a practice aimed at maintaining the department's independence from election-related politics.
Given the escalating tensions between Trump and the Justice Department, the future of the "silent period" and its implications for political investigations remain a significant topic in the realm of politics.
