EXPLAINER

Trump falsely claims the Justice Department is hamstrung in the lead-up to November’s vote as he stares down two federal cases.

Former President Donald Trump has said the Department of Justice has a “60-day rule” that prevents it from taking certain law enforcement actions against candidates in the run-up to the United States elections.

If Trump’s statement were correct, it would have wide-ranging implications as he stares down two federal indictments: one in Washington, DC, for efforts to overturn the 2020 election, and another in Florida for allegedly hoarding classified documents.

Friday marks 60 days until the presidential election on November 5. So what are the facts behind the claim?

What did Trump say?

Trump invoked the “60-day rule” while responding to an updated indictment filed last month in the federal election case in Washington, DC.

“It is DOJ policy that the Department of Justice should not take any action that will influence an election within 60 days of that election – but they just have taken such action,” Trump wrote on Truth Social.

Others have since echoed that criticism. Last week, Judge Aileen Cannon, a Trump appointee, questioned federal prosecutors in the Florida case about whether holding a trial before the election would violate the rule.

Legal experts, however, have rejected that position. And Jay Bratt, a federal prosecutor in the Florida case, told Cannon that, since Trump had already been charged, no rule or norm would be violated.

So what was Trump talking about?

Trump was referring to an unwritten — and admittedly vague — guideline that Justice Department officials have adopted over the years.

A 2018 report from the Justice Department’s inspector general clearly states: “No Department policy contains a specific prohibition on overt investigative steps within a particular period before an election.”

Still, it noted that many officials have adhered to “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 report probed the decision by former FBI director James Comey to reopen an investigation into Democratic candidate Hillary Clinton’s emails just 11 days before the 2016 election.

Comey later said avoiding actions that could impact the election was a “very important norm”.

Does Trump have any recourse?

No. Because the guideline is unwritten, it is a best practice rather than a legal requirement. When and how the guideline applies is up to department officials.

Legal scholars have further argued that Trump cannot claim he was being treated unfairly because the guideline only applies to major actions, like the filing of brand-new indictments.

Because Trump had been indicted long before the 60-day window, the guideline would theoretically not apply to the ongoing federal proceedings in Washington, DC, and Florida.

The guideline is also not valid for Trump’s upcoming sentencing in New York or the pending trial in Georgia: Both of which are state-level proceedings, whereas the guideline is strictly federal.

Finally, Trump may need to check his math. Even if he were correct about the rule, Special Counsel Jack Smith filed the updated indictment on August 27. That is 70 days out from the November 5 vote.