60-day election window nears

Anticipation builds around Mueller as 60-day election window nears

The cutoff is not a hard and fast rule, but some former prosecutors expect Mueller to bend over backward to avoid taking steps that might be construed as improper before the midterms.

By JOSH MEYER

The window closes next week for special counsel Robert Mueller to take any more bombshell actions before midterm season officially kicks off, and people in the president’s orbit and across Washington are watching with heightened anticipation that a final pre-election surprise could come soon.

Longtime Donald Trump confidant Roger Stone emailed supporters Monday and asked for donations to his legal defense fund, saying he believes his indictment is imminent.

The president’s personal lawyer, Rudy Giuliani, has publicly called on Mueller to wrap up his investigation into Trump by the end of next week, when the midterms will be two months away.

“Just a few days before 60 day run-up to 2018 elections,” Giuliani tweeted Saturday from his golfing vacation in Scotland. “If Mueller wants to show he’s not partisan, then issue a report on collusion and obstruction.”

The increased attention stems from Justice Department guidelines that recommend against law enforcement taking major investigative or prosecutorial actions close to an election, so as not to unduly influence voters. Although primaries have been underway for months, Giuliani and others have said the 60-day period before the election should be free of any big activity by Mueller’s team.

But a close read of Justice Department policy shows that the cutoff is not a hard and fast rule, according to more than a dozen current and former Justice Department officials and other legal experts.

Nonetheless, some former prosecutors said they expect Mueller — long known as a by-the-book federal lawman — to bend over backward to avoid doing anything that might be construed as improper right before the Nov. 6 midterms, which will determine who controls Congress for the next two years.

“I know of no Justice Department rule or regulation that limits the timing of an announcement related to an election,” said former Assistant U.S. Attorney Renato Mariotti. “That said ... I can’t imagine him taking any action that could be seen as influencing an election.”

Mueller’s grand jury meets on Fridays, and Stone, at least, appears to be on edge about possible action, though he told POLITICO on Thursday his concerns were not tied to the 60-day window, which he thought applied more to elected officials.

Stone, an informal Trump campaign adviser, has long been suspected of acting as an intermediary in the Russian conspiracy to hack and disseminate Democratic campaign-related emails. Although Stone has vehemently denied wrongdoing, Mueller has brought in several of the veteran operative’s associates and friends for questioning in the investigation.

Stone said this week that he believes Mueller is “coming for” him in an effort to silence him and pressure the longtime Republican operative “to testify against my good friend President Donald J. Trump.”

The anticipation of charges this week might be overhyped. One of Stone’s associates, Randy Credico, is not scheduled to appear before the grand jury until next Friday. And Mueller and his team have managed, so far, to keep their plans about the timing — and the targets — of indictments almost entirely under wraps.

“There is no rule. It is something that Giuliani has invented,” said Peter Zeidenberg, a former federal prosecutor who served as deputy to special counsel Patrick Fitzgerald during the George Bush-era CIA leak investigation. “In my opinion, absolutely nothing in this would prohibit or constrain Mueller from charging Roger Stone or anyone else connected to the Trump campaign in the next six weeks.”

Still, given the raging controversy then-FBI Director James Comey set off by disclosing his decision to reopen the bureau’s Hillary Clinton email probe just weeks before the November 2016 election, Mueller might want to avoid drama for a couple of months.

A Justice Department document known as the “Holder memo” urges law enforcement to allow politics to play no role in prosecutorial decisions and to try to time such decisions to avoid affecting elections.

But a report from the Justice Department’s inspector general in June found that the oft-discussed 60-day rule “is not written or described in any Department policy or regulation.”

As a result, high-ranking department and FBI officials over the years had to rely on “a longstanding unwritten practice in deciding how, and when to avoid overt law enforcement and prosecutorial activities close to an election,” the report said.

In late October 2016, in fact, after the FBI learned of the existence of additional Clinton-related emails, DOJ personnel circulated “highlighted editorials authored by former Department officials” discussing the so-called 60-day rule, the inspector general’s report found, underscoring the lack of concrete guidance that authorities had to go on at the time.

Comey wound up sending a letter notifying lawmakers that the FBI would take investigative steps to review the additional emails. Even though he quickly followed up to say the emails contained no new information, Clinton associates still say he turned enough voters against her to cost her the election.

Last month, former Obama administration White House counsel Bob Bauer opined that the “unwritten” rules about when it’s appropriate to act could create a political and legal minefield for Mueller the further his investigation goes.

“What’s more, that guidance applies to decisions affecting the electoral process and does not address the impact they have outside election seasons on matters of governance,” Bauer wrote in an op-ed piece for the Lawfare journal.

Already, Bauer noted, Mueller has come under fire by Trump supporter and former George W. Bush Attorney General Michael Mukasey for indicting 12 Russian intelligence agents on the eve of the president’s Helsinki summit with Russian President Vladimir Putin. He also noted that Trump has publicly lambasted Mueller, decrying his investigation as a politically motivated witch hunt that is being drawn out to hurt Republicans in November.

Trump also could create a showdown with Mueller, intentionally or otherwise, by inviting Putin to the White House in the weeks before the midterms, Bauer wrote.

“In the absence of a hard-and-fast rule on timing, and if the question in each particular case is controlled by a judgment of ‘impact,’” Bauer said, “then the Mueller team may well anticipate serious challenges ahead.”

One former Trump campaign official, Sam Nunberg, said he and other Trump supporters “are not worried about a 60-day window.”

“If Mueller and his team were dumb enough to do anything close to the election,” he said, “it will only help us.”