CNN
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With a month left until voters head to the polls, the Justice Department finds itself at a difficult crossroads between election-year politics and continuing to operate the nation’s top law enforcement agency. At the same time, he is trying to maintain his reputation for fairness while continuing to pursue prosecutors. Republican presidential candidate Donald Trump.
The tension escalated Wednesday when special counsel Jack Smith’s 165-page summary of evidence and analysis of why President Trump’s efforts to overturn the 2020 election should not be immune from federal prosecution was released in Washington, D.C. culminated in the public release by the judge overseeing the criminal case. against the former president.
Regarding the timing of the submission of this brief, some experts have already called it an “October surprise,” that is, a political report submitted in the month before election day that was submitted after the Supreme Court’s decision this summer granting partial immunity to the former president. It is believed that this is a public disclosure.
President Trump has already slammed the filing, with several social media posts Wednesday night accusing President Joe Biden’s Justice Department of trying to influence the election in favor of Vice President Kamala Harris. criticized. President Trump has argued that Smith’s brief violates the department’s longstanding practice of remaining silent before national elections.
During the Justice Department’s so-called “quiet period,” prosecutors are trying to avoid public statements or actions that could be seen as political in the weeks leading up to the November election. The quiet period is part of an effort to make clear that the Justice Department and its investigation are not motivated by politics.
“They disobeyed their own rules in favor of complete and utter election interference,” Trump wrote in one post.
But the filing was made public by U.S. Judge Tanya Chutkan (who did not benefit from a quiet period) before the window opened this weekend, and Smith was following the judge’s order setting a deadline for filing briefs. Chutkan is deciding how to proceed with the case following the Supreme Court’s ruling.
Moreover, the timing for reopening the case had been in motion months earlier. The Supreme Court rejected Smith’s request to expedite consideration of the immunity issue as President Trump pushed for a delay. After the High Court handed down its ruling in July, the case was sent back to Chutkhan on the basis of the regulations a month later, with elections just around the corner.
Smith’s office declined to comment.
Quiet periods always precede national elections, but there is little written policy regarding what prosecutors can and cannot do as elections approach. There are not even written rules about how far in advance of an election to take special precautions. In fact, there is confusion within the Department of Justice as to when the quiet period actually begins and whether it should start 30 days earlier or 60 days earlier.
Instead, the department’s staff adheres to a practice that tends to change slightly from election cycle to election cycle and from administration to administration. And a once-innocuous Justice Department practice is now the focus of President Trump’s efforts to return to the Oval Office.
This is not the first time the Justice Department and federal law enforcement have been forced into an election cycle. Eleven days before the 2016 election, then-FBI Director James Comey said in a letter to members of Congress that he was examining additional emails in the investigation into Hillary Clinton’s handling of classified information. .
The investigation ultimately ended with no charges filed, and the Justice Department’s internal watchdog issued a scathing report calling Comey’s actions “unusual and insubordinate” but not motivated by political bias. published a book.
Still, Trump benefited from Comey’s disclosures during the remainder of his campaign. Clinton allies have long blamed the former FBI director for contributing to her election loss.
The department’s written policy states that “Federal prosecutors and investigators will never take or change the timing of any action, including investigative procedures, criminal charges, or depositions, for the purpose of influencing or favoring or disadvantaging an election.” Do not choose.” No matter what candidate or party. ”
But there are also implicit departmental norms about how prosecutors should handle law enforcement actions against candidates near Election Day, or “overt” investigative actions such as executing search warrants and filing charges.
These precautions are narrow in scope and focus on media appearances, attendance at events with politicians, investigative activities, or charging decisions that could be considered political. These do not affect most of the day-to-day operations of the department.
A quiet period won’t stop the Justice Department from filing lawsuits or speaking out publicly about other issues unrelated to the election. Prosecutors will continue to investigate, prosecute and try cases across the country, and the Justice Department can still choose whether to release verdicts and indictments.
In cases like the case against Mr. Trump, in which the department separately indicted Mr. Smith in Florida over his handling of classified documents that the former president is seeking to reinstate on appeal, There are no restrictions on how prosecutors can continue their case if they have brought charges involving a That means they can file legal briefs, make arguments before a judge, and enter into contracts with defendants.
Additionally, while the Justice Department controls the timing of investigations, it does not control the scheduling of cases after someone is indicted. A federal judge, who is not an employee of the Justice Department or the executive branch, sets these schedules.
Mr. Trump has long sought to use the upcoming election as a reason to abandon the D.C. federal lawsuit, but now he is citing Mr. Smith’s 165-page legal brief as evidence of political interference by the Justice Department.
Mr. Smith and Attorney General Merrick Garland have repeatedly denied allegations that the prosecution is political or intended to sway voters.
Prosecutors on Smith’s team cited the department’s silent periods in court, with one prosecutor telling the judge that the practice determines “within what period of time before an election a new case can be brought.” “It does not apply to cases that have already been filed.” I was charged. ”
Still, President Trump’s attacks are likely to continue next month. Mr. Chutkan is expected to release redacted evidence as early as next week, including jury transcripts and notes from FBI interviews conducted during the years-long investigation that supported Mr. Smith’s case.
The election interference incident is reaching a critical stage. Mr. Trump’s team plans to respond to Mr. Smith’s brief. Ultimately, Mr. Chutkan must decide how or whether to proceed with the case.
As part of these decisions, Mr. Chutkan ordered extensive briefings on what evidence prosecutors have against Mr. Trump and whether that evidence will be admitted due to presidential immunity issues. .
Mr. Chutkan alone decides when these submissions are due and whether they should be made public, and he has made it clear that he will not take the election into account when making these decisions.
“This court is not involved in the election calendar,” Chutkan told Trump’s lawyers at a recent hearing. “Yes, there’s an election coming up. But if you’re talking about a sensitive period, the timing of legal issues and evidentiary issues in relation to election time, that’s not the case. I don’t think so. I’m not going to take that into consideration.”