The US Justice Department has faced accusations of breaking long-standing election-year norms after pursuing a series of high-profile investigations and prosecutions involving prominent Democrats and former FBI officials just weeks before the midterm elections.
Former department officials said the timing of actions including a search of Democratic congresswoman Ilhan Omar’s home, charges against Virginia state senator L Louise Lucas and allegations against two former FBI counter-intelligence officials had created the appearance of political interference.
The department has rejected the criticism. A spokesperson said: “This Department is following the facts and the law, not anyone’s political timetable.”
Justice Department election investigations draw scrutiny
The cases have attracted particular attention because they involve figures who have been frequent targets of President Donald Trump’s political attacks or are connected to issues that have interested his supporters.
Ms Omar, a longstanding critic of Mr Trump who is seeking re-election in her heavily Democratic Minnesota district, had her home searched earlier this month as part of an investigation involving allegations of immigration fraud.
Ms Lucas, one of Virginia’s most senior Democrats as president pro tempore of the state Senate, was charged over an alleged scheme linked to her cannabis business. Her daughter, Lisa Lucas-Burke, was also indicted and is standing for election to Portsmouth City Council.
The Justice Department has said Ms Lucas is not on the ballot this year. An official, speaking anonymously, said the case involved racketeering and a money-laundering conspiracy and could not influence the election.
Former FBI officials Nikki Floris and Bradley Benavides were accused last week of lying in connection with the bureau’s investigation into Hunter Biden’s laptop. Prosecutors later sought to add charges, but a magistrate judge rejected them and criticised the government.
An FBI agent involved in the investigation said it had been launched at the request of FBI director Kash Patel, shortly after Mr Trump delivered a speech and ordered the Justice Department to investigate former counter-intelligence officials.
Prosecutors have also taken steps to charge former FBI director James Comey. The department said the timing was connected to the expiry of the statute of limitations on October 5. It is the third time since last year that prosecutors have sought to charge Mr Comey over separate alleged offences.
Prosecutors separately sought an indictment against Cassidy Hutchinson, a former White House aide, over allegations that she lied in testimony to the congressional committee that investigated the January 6 attack on the Capitol. A grand jury rejected the charges.
Concerns over the 60-day election convention
The Justice Department has traditionally observed an unofficial convention of avoiding investigative steps or public statements during the 60 days before an election if they could affect a race. The practice has been intended to keep the department from influencing voters through prosecutions or announcements.
Gregory Brower, a former US attorney for Nevada under President George W Bush, said: “If you don’t absolutely need to do something within 60 days of the election, the better practice was, for good reason, just don’t do it. If the evidence is there, it’s going to be there after the election.”
The department’s written manual also prohibits prosecutors and agents from timing investigative actions in a way that could advantage or disadvantage a candidate or political party. Officials are expected to consult the Public Integrity Section when the political impact of an action is uncertain.
That section was substantially reduced last year by Trump-appointed leaders, leaving two people to staff it, according to the material reviewed for the article. The department’s Office of Public Affairs has also traditionally limited press conferences and releases during election periods, while taking care over comments from politically appointed officials.
Peter Carr, a 15-year veteran of the office, said Attorney General Todd Blanche had not issued the customary memorandum warning staff about election-related sensitivities. He questioned why the search of Ms Omar’s home had to take place before the election rather than afterwards.
“DOJ leadership is taking unusual steps ahead of an election that ordinarily would not be taken under prior elections,” Mr Carr said. “It just shows a completely different view of what they believe is appropriate now.”
Mr Blanche has dismissed suggestions that the search of Ms Omar’s home or the charges against Ms Lucas were politically motivated. He said the 60-day convention was not part of the Justice Department’s manual and that it was time to bring the case against the Virginia senator.
Voting cases add to criticism
The department has also pursued a series of election-related cases and actions. It sued California in an attempt to force the state to set aside 20,000 ballots that it said may have been cast by non-citizens, but a judge rejected the request.
It filed an unprecedented complaint seeking to block certification of Alaska’s Senate race if Republican senator Dan Sullivan lost, citing possible confusion involving another candidate named Daniel Sullivan.
The department has also publicised dozens of arrests of people it said were non-citizens accused of voting in previous elections. Announcements included photographs and videos of suspects being led away in handcuffs, although most of the allegations involved lesser misdemeanour offences.
David Becker, a former member of the Justice Department’s voting section and executive director of the Center for Election Innovation & Research, said some investigations and civil cases could have been delayed until after voting.
“At a minimum it gives the perception of attempting to interfere with the election, and I think there is a very good argument that’s actually what the DOJ seeks,” Mr Becker said.
The department has said its cases involving unlawful voting and registration concern conduct from previous elections and do not breach its internal guidelines. It also maintains that the Lucas and former FBI officials’ cases cannot affect the current election because the defendants are not candidates.
Former prosecutors warned that the timing could damage prosecutions even where the underlying evidence was strong. Gregory Rosen, a former assistant US attorney in Washington, said public trust was essential to the department’s authority.
“Voters need to believe charging decisions are based on merit and not on anything else,” he said. “I haven’t seen the evidence in these cases, and some of the cases may ultimately hold up on the merits, but even a solid case now carries a stain.”
Mr Brower said the political consequences could also differ from those intended, with voters potentially blaming the department and the president’s party rather than candidates facing charges.
