A.G. Merrick Garland memo suggests no federal indictment of Donald Trump before November election

WASHINGTON – Don’t expect a federal indictment of Donald Trump over the Jan. 6, 2021, insurrection before the November election, legal analysts say a newly revealed Justice Department memo suggests.

Attorney General Merrick Garland reminded U.S. Department of Justice officials that extra steps are required before action can be taken in politically sensitive cases during the fall election season – and unprecedented charges against a former president would certainly seem to qualify.

Legal analysts said Garland is re-stating a long-standing policy that discourages the announcement of investigations or indictments of major political figures on the cusp of elections because it could be construed as interfering in the election.

In the May 25 memo, Garland:

  • Cited policies “governing the opening of criminal and counter­-intelligence investigations by the Department, including its law enforcement agencies, related to politically sensitive individuals and entities,” especially during campaigns.

The Trump investigations: Trump investigations set to accelerate in coming weeks: Where the inquiries stand

The Jan. 6 committee:For the first time, Jan. 6 committee alleges Trump, others engaged in criminal conspiracy to overturn election

  • Did not specifically mention Trump or any other politician who may be under investigation. Justice Department officials who have charged hundreds of people for storming the U.S. Capitol on Jan. 6, 2021, have never said whether their ongoing investigation touches on Trump specifically.

  • Reminded DOJ officials they are subject to the federal Hatch Act, which “generally prohibits Department employees from engaging in partisan political activity while on duty, in a federal facility, or using federal property.”

Takeaways: Garland is reminding prosecutors that they need extra approvals for cases involving political figures.

Also note: The policy deals specifically with the weeks leading up to an election.

What they’re saying:

  • Anti-Trump commentators are casting the memo – first reported by MSNBC host Rachel Maddow – as an excuse for inaction against Trump. The Maddow Blog says the memo “doubles down” on the policy of Trump-era Attorney General Bill Barr “against investigating candidates without approval.”

NEW: May 25, 2022 Merrick Garland memo to DOJ on “election year sensitivities” doubles down on Barr’s policy against investigating candidates without approval. pic.twitter.com/KIQZMB34Qi

— Maddow Blog (@MaddowBlog) July 19, 2022

  • Other attorneys, including Trump critics, note that this has been a long-standing Department of Justice policy. It makes sense, they said, because the DOJ wants to avoid the perception of politically motivated investigations.

  • In a video posted on Twitter, former U.S. Sen. Doug Jones, D-Ala., also a former federal prosecutor, described the Garland guidance as “a re-affirmation of what has been Justice Department policy for a long, long time.”

Lots of chatter about the leaked May 25th Garland memo to DOJ personnel. Here’s my take https://t.co/Tg4B2IWsWp

— Doug Jones (@DougJones) July 19, 2022

  • Former federal prosecutor Renato Mariotti tweeted: “Yes, Garland extends Barr’s instruction that investigations of presidential candidates and their senior aides must be cleared by the AG. That would typically happen in any event.”

  • Mariotti also said: “Although that is not explicitly stated in the policy, I agree that we are unlikely to see an indictment of Trump or his associates before November.” He added: “I don’t consider Garland’s memo to be a significant change from DOJ policy before Biden’s presidency.”

Bottom line: Few people expect the Justice Department to indict Trump in the weeks before the November mid-term election.

Bear in mind:

  • As with previous DOJ guidance, the Garland memo does not foreclose all investigative action. It only calls for more consultation before moving forward in a politically sensitive case.

  • Garland’s guidance applies to the federal Department of Justice, not to law enforcement officials in Georgia, where Trump is also under investigation.

  • An Atlanta-based grand jury is investigating Trump for pressuring state election officials to overturn his election loss to Biden in Georgia.

The Georgia story:Atlanta-area DA weighing whether to call Trump to testify before grand jury in election fraud probe

Bottom line: The Garland memo tells employees that “we must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and non-partisanship.”

This article originally appeared on USA TODAY: Garland memo to DOJ lays out steps for “politically sensitive” cases

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