Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
If there was any question before about whether William Barr could be willing to use his power as attorney general to tilt the scales in the upcoming presidential election, there shouldn’t be anymore. Barr appeared to confirm as much in his interview with Wolf Blitzer on CNN Wednesday: that he would be willing to breach longstanding Justice Department norms – that is, the unwritten “60-day rule” – to advantage the re-election campaign of President Donald Trump.
Barr also continued to claim that mail-in ballots provide potential for widespread fraud. “Elections that have been held with mail have found substantial fraud and coercion,” he said.
When asked by Blitzer whether he could cite any prosecutions relating to this purportedly widespread criminal phenomenon, Barr responded by citing one case – yes, one.
Blitzer asked: “You’ve said you’re worried a foreign country could send thousands of fake ballots … what are you basing that on?”
“Logic,” Barr replied. “But have you seen any evidence?,” Blitzer pressed? “No,” Barr replied.
I’m trying to envision what would have happened in my Justice Department days if I had made a crucial assertion about a case and, when asked by a judge for proof, responded that I had none – but it was “logic.” It would not have ended well.
Barr has made entirely clear that he intends to continue parroting Trump’s most paranoid, cooked-up conspiracy theories about massive fraud in mail-in voting. If we end up in a dreaded (but eminently possible) contested election scenario, Barr is offering plenty of reason to expect that he would be prepared to use the might of the Justice Department to swing the outcome towards Trump.
The attorney general also tipped off another trick he may have up his sleeve. Traditionally, the Justice Department will not announce a new case that has political implications within this period. This 60-day rule (or the “blackout rule,” as it is sometimes called) reflects the Justice Department’s vital commitment to keep its awesome prosecution power out of electoral politics wherever possible.
In essence, unless it is absolutely unavoidable, the Justice Department will refrain from announcing new charges or from taking overt investigative steps (such as executing a search warrant) that might impact an upcoming election. As the Republican-appointed Mukasey stated while serving as attorney general, “Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.”
But contrary to Justice Department practice under both political parties, Barr is keeping the door wedged open to deliver Trump a September or October surprise.
Barr had already signaled that he will not respect the 60-day rule as it relates to any potential indictments resulting from the ongoing investigation by John Durham into the origins of the investigation of Russian interference in the 2016 election. When asked during his House Judiciary Committee testimony in July 2020 whether he would observe the 60-day rule relating to the Durham investigation, Barr responded flatly, “No.” Barr reiterated in his interview with Blitzer that he is aware of the rule but does not believe it necessarily applies to the Durham investigation. He said: “I will handle these cases as appropriate, and I do not think anything we do in the Durham investigation is going to be affecting the election.”
For an example of the perils created by violation of the 60-day rule, look no further than 2016 when FBI Director James Comey announced the outcome of the Hillary Clinton investigation in July 2016 (outside the technical 60-day period) and then announced a reopening of the investigation in October 2016, just days before the election – a move the Justice Department inspector general later found to be a “serious error of judgment” that violated “longstanding Department practice.”
Barr himself has embraced the policy, in writing. The problem is Barr also has made clear elsewhere that he intends to apply it selectively and – no surprise, given Barr’s recent history – to Trump’s benefit. The issue is not whether Durham will or won’t find additional evidence of wrongdoing at the FBI, as he already has with the charging of FBI attorney Kevin Clinesmith for falsifying an email related to a surveillance warrant. If Durham finds similar or other criminal wrongdoing elsewhere, those charges should be brought.
The issue is whether Barr will refrain from announcing any new charges within the 60-day period based on the outcomes of this investigation. And considering Barr’s House testimony, in which he draws a tortured distinction, it is unlikely. The 60-day rule prohibits announcement of new indictments close to the election if those cases are political – but, in Barr’s apparent rationale, any indictments resulting from the Durham investigation do not qualify because he does not consider it political.
This is utter nonsense, and Barr must know it. First, the Durham investigation itself, which began in 2019, was born of partisan politics.
Even though both Republican and nonpartisan authorities – including the Republican-led Senate Intelligence Committee, the nonpartisan Justice Department inspector general (originally a Barack Obama appointee but kept on board by Trump), and longtime Republican Robert Mueller – have already found that the 2016 investigation of Russian interference was both necessary and proper, Barr still insisted on commissioning Durham to try again to breathe life into Trump’s ridiculous “Russian hoax” narrative. (Tellingly, Barr casually repeated Trump’s conspiracy theory, referring casually to the “the Russiagate thing” in his interview with Blitzer).
Not only is Barr twisting common sense to reach his pro-Trump conclusion, but he also knows better. As Just Security’s Ryan Goodman noted, Barr himself took a broad view of the 60-day rule during his first term as attorney general in the early 1990s.
Back then, Barr said essentially that any case even peripherally touching on a candidate falls within the 60-day rule. Now, Barr seems to take a much narrower view that would limit the 60-day rule only to cases that charge an actual candidate or somebody close to that candidate.
We already have seen what Barr is willing to do, how he has twisted the facts and norms – time and again – to serve Trump and his allies. He distorted parts of the Mueller report, prompting the special counsel to write a letter taking issue with Barr’s characterization of his findings. Barr allegedly pressured the US Attorney for the Southern District of New York to resign under dubious circumstances, which ultimately led to the attorney’s departure from the Justice Department.
And he intervened in the cases of Trump political allies and advisers Michael Flynn and Roger Stone. In the case of Flynn, Barr sought to dismiss charges, but the appellate court ruled that the district court could conduct further proceedings to decide whether to grant the request. And, in the case of Stone, Barr overruled the trial prosecutors and requested a lower sentence that Trump ultimately commuted.
The pattern is clear. Now, with the election right around the corner, do not be surprised if Barr continues what he has started and uses the Justice Department’s might to tilt the scales in Trump’s favor.
Now, your questions
Susan (Ohio): Can the President pardon Steve Bannon even though he has not been tried?
Yes. The constitutional pardon power is extraordinarily broad, with virtually no explicit limitations. Article II provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment” (meaning the President cannot unimpeach an official who has been impeached). In short, there is no requirement in the US Constitution or anywhere else in our laws that a person must be tried, convicted or sentenced before the President can issue a pardon.
Presidents have issued pardons throughout history for people who have not even been criminally charged, never mind convicted or sentenced. Then-President Gerald Ford pardoned former President Richard Nixon in 1974, shortly after Nixon’s resignation but before Nixon was ever charged with any crime relating to Watergate (or anything else).
In 1977, then-President Jimmy Carter pardoned Vietnam War draft dodgers as a group, many of whom had never been charged with crimes. And, in 1868, then-President Andrew Johnson pardoned former Confederate soldiers, many of whom had not been criminally charged.
Alicia (Ohio): Is there a federal law requiring that voters send mail-in ballots through the US Postal Service, or can they send in ballots through private delivery services, such as FedEx or UPS?
There is no federal law requiring that mail-in ballots be sent through the United States Postal Service or prohibiting people from sending in their ballots through private carriers, but virtually every relevant party advises against relying on private carriers. FedEx and UPS have both issued statements warning against and discouraging people from using their services for mail-in ballots.
The primary concern is that rules and regulations can vary by state and by county, and it is possible that not all election officials would accept private delivery. According to election experts, the better approach for people worried about making sure their ballots will be counted is to mail in ballots as early as possible, or to deliver ballots directly to secure dropoff locations or local elections offices.
Greg (California): Can the president legally remove the presidential two-term limit without congressional approval?
No, and even if the president and Congress agreed, they’d still need more to change the presidential two-term limit. Long an unwritten norm established when George Washington refused to run for a third term, the two-term limit formally became part of our Constitution with ratification of the 22nd Amendment in 1951, after President Franklin Delano Roosevelt broke the unwritten rule by running for and winning a third term in office (in 1940) and then a fourth (in 1944).
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The only legal way to change the two-term limit is by amending the constitution itself. That is an arduous process that, under Article V of the Constitution, requires proposal by two-thirds votes of both the Senate and House, followed by ratification by three-fourths of the states. Despite Trump’s statements about seeking a third term (or beyond), there is almost no chance we see a constitutional amendment enabling that to happen.
Three questions to watch
1. Will Wisconsin prosecutors or the Justice Department pursue charges in the police wounding of Jacob Blake and, if so, what charges will they file?
2. How will courts rule on challenges to states sending mail-in ballots to voters in Nevada and New Jersey?
3. Now that the Michael Flynn case is back before the trial-level federal judge, will he dismiss Flynn’s conviction or keep it in place?