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U.S. District Judge Aileen Cannon faces a Justice Department-imposed Thursday deadline to rule on whether she will stay her order to have a special master review documents the FBI seized at Mar-a-Lago when it comes to those materials marked as classified.
At the same time, the DOJ itself, specifically Attorney General Merrick Garland, must decide whether to comport with its practice of not taking major actions that could impact elections within 60 days of when voters go to the polls.
The DOJ said in a filing that if Cannon does not decide by Thursday to allow investigators to continue to review the classified materials while they appeal the order appointing a special master, they will go to the Eleventh Circuit Court of Appeals and ask them to do it.
All this is part of the Justice Department’s efforts to speedily conduct their investigation, but it comes at a time when traditionally, they would be backing off.
DOJ practice during an election year has often been to hold off on major actions in cases that could impact elections during the 60 days leading up to Election Day, an unwritten policy commonly referred to as the “60-day rule.” The “rule,” which is really more of a tradition because it is not an actual rule, has been cited many times in recent years.
In 2020, it came up regarding Special Counsel John Durham’s probe of the origins of the Russia investigation. In 2018, it was Robert Mueller who backed off from major developments in his case ahead of that year’s midterms. In 2016, former Attorney General Eric Holder wrote in the Washington Post that then-FBI Director James Comey “violated long-standing Justice Department policies and tradition” with actions related to the Hillary Clinton investigation so close to the presidential election.
A 2018 Justice Department Inspector General report on the FBI and DOJ’s practices in 2016 discussed the 60-day rule. The report said the rule “is not written or described in any Department policy or regulation,” but that “high-ranking Department and FBI officials” have recognized “a general practice that informs Department decisions.” It even cited Comey as saying there is “a very important norm which is … we avoid taking any action in the run-up to an election if we can avoid it.” The report even cited former Deputy Attorney General Sally Yates, who said that even if an election was “90 days off” and there’s a chance that something could affect an election, “unless there’s a reason you need to take that action now you don’t do it.”
Now, 54 days away from November’s midterm elections, Garland has a choice: keep with tradition, or push forward. Fox News reached out to the Justice Department about this, but they did not immediately respond. In their court filing in the Mar-a-Lago raid matter, the DOJ said it is critical that they be allowed to review the classified documents now due to national security interests, but they were not specific.
Technically, Garland could argue that the rule does not come into play given that former President Donald Trump himself is not on the ballot. At the same time, the White House – including President Biden himself – has made Trump an issue by claiming that the Republican Party has been taken over by “MAGA Republicans” who follow him and “represent an extremism that threatens the very republic.”
As for whether Garland will decide to follow the 60-day rule and whether the court will agree that the DOJ must review the classified documents sooner than later, time will tell.