On September 30, the Justice Department’s Office of the Inspector General rearranged its list of top priorities. Two recommendations came off because the FBI and the Bureau of Prisons finally did what they were told. Two went on. One of them dates to 2018 and asks the Department to consider giving agents and prosecutors guidance on overt investigative steps, indictments, public announcements, and other actions that could affect an election. The midterms are a month away. The Department is still considering.
A Norm in Search of a Sentence
The recommendation comes from the OIG’s review of the FBI and DOJ in advance of the 2016 election, the same review that found then FBI Director James Comey had gone against Department norms when he told Congress about renewed investigative activity days before the vote. The OIG’s diagnosis, restated in this week’s release, was almost comic in its simplicity. DOJ and the FBI had long observed a norm against actions that could sway the political process ahead of an election, but witnesses disagreed about what the norm covered, and no formal policy contained a specific prohibition on overt investigative steps within any particular period beforehand.
Everyone knew there was a rule. Nobody could agree on what it said.
Outside analysts have not improved matters. A Lawfare analysis collected the descriptions on offer, ranging from a practice of avoiding overt activity within 60 or 90 days of Election Day, to a rule that prosecutors avoid disclosing investigative steps or indicting candidates within 60 days, to a general principle with no specific time period at all. A rule that arrives in three sizes is less a rule than a mood.
Eight Years of Careful Consideration
The recommendation itself was gentle. It asked the Department only to consider guidance, and according to a 2020 letter from House Democratic committee chairs, DOJ told the OIG in June 2018 that it concurred. Concurrence is cheap.
There is, to be fair, paper. Attorneys general issue periodic Election Year Sensitivities memos, such as the 2024 edition, reminding employees that they may never pick the timing of statements, investigative steps, or charges to affect an election, and directing them to the Public Integrity Section when timing near an election is in doubt. In August 2022, according to a later OIG report, the Department wrote the policy into the Justice Manual, where section 9-85.500 now says much the same.
What that language establishes is a rule about purpose, not about the calendar. The Lawfare analysis noted that a purpose test appears to permit actions that do in fact affect an election, so long as affecting it was not the intent. It also leaves open the question the OIG raised in the first place, which is how close is too close. The 60-day rule remains an oral tradition, and oral traditions are dependable right up until someone needs one. In 2020, critics (including a former Civil Rights Division official) said the Department’s own announcement of a Pennsylvania ballot investigation was flatly inconsistent with the Attorney General’s election memo, which is what happens when everyone is working from memory.
The OIG’s release does not say what the Department has or has not done since 2018. It says only that the recommendation is open and that the OIG now counts it among the three it believes would most benefit the Department. A reasonable reader might infer that a purpose test and a phone number for the Public Integrity Section do not satisfy the watchdog. The watchdog has not said so.
A Priority With a Calendar Problem
Election Day is November 3. By the unwritten 60-day yardstick, the quiet period began on September 4, and the 90-day version began on August 5. The OIG’s announcement landed on September 30, inside both.
The timing sits alongside other news. In June, Democracy Docket reported, following reporting by NOTUS, that DOJ had quietly removed its Federal Prosecution of Election Offenses manual from its website. A group of Democratic senators wrote to Acting Attorney General Todd Blanche on June 8 asking why, pointing out that the manual’s 2017 edition told prosecutors to follow longstanding policies on the timing of charges and overt investigative steps. As of September 24, UPI reported that no public explanation had been given.
The OIG’s release mentions none of this, and nothing in it ties the designation to any current matter. Priority lists are the office’s own housekeeping, and the OIG may simply have run out of patience with a 2018 recommendation. But a watchdog flagging the absence of written election timing guidance, in the same season that a published guide to election prosecutions disappeared from the Department’s website, is the kind of coincidence that earns a follow-up question. So far the question has no answer.
The Ones That Got Finished
It was not all stalling. The FBI closed out a recommendation from the OIG’s 2021 review of the Larry Nassar allegations, rewriting its Domestic Investigations Operations Guide and its Crimes Against Children Policy Guide so that employees know when they must coordinate with state and local authorities. The OIG closed it in April, which means the announcement arrived five months after the paperwork. The Bureau of Prisons closed a recommendation from a 2023 limited-scope review by building a reliable staffing tool, using it across the system, and telling Congress and the executive branch what the staffing actually costs. The OIG closed that one in September.
The other new priority comes from the Crossfire Hurricane review of 2019. It asks DOJ and the FBI to evaluate which sensitive investigative matters, especially case openings touching core First Amendment activity, should require advance notice to a senior Justice official such as the Deputy Attorney General. The OIG says it told the FBI in April 2021 that its policy changes were responsive, yet the recommendation stays open pending a department-wide DOJ evaluation. More than five years have passed since that April 2021 response, and the release does not say when the evaluation began or how far along it is. It is fair to infer that it has been pending for much of that time, but that is an inference from the 2019 report and the 2021 response, not something the OIG states. The one remaining priority on the list is for the Bureau of Prisons to complete needed upgrades to its security camera system.
The Department can, it turns out, count correctional officers and rewrite an investigations guide. Telling its own prosecutors when to stop investigating before an election, in plain words that fit on a single page, remains under consideration.
