In a 25 May internal memo, Attorney General Merrick Garland extended a 2020 Department of Justice (DOJ) policy instituted by his predecessor, Trump Attorney General Bill Barr. The policy states that investigators must get approval for any investigations into presidential candidates or their staff with the country’s top law enforcement official.
The memo was obtained by MSNBC, with host Rachel Maddow revealing it on Monday night.
According to the policy, investigators must obtain written approval from the attorney general before opening an investigation into people who have declared that they are running for either president or vice president. The policy also applies to presidential campaigns, as well as senior members of campaigns for president, such as advisors.
The news comes as Mr Garland is facing increasing pressure to bring charges against former President Donald Trump as the House Select Committee investigating January 6 reveals more and more about his actions in relation to the 2021 insurrection.
While he’s yet to announce a 2024 campaign, Mr Trump has hinted on several occasions that he’ll run again.
The news of the memo prompted outrage from Twitter users, including DC Police Officer Daniel Hodges, who was injured during the riot.
“Garland if you want to be neutral, political activity would have no bearing whatsoever on your work. The fact that they do means you are not neutral,” he tweeted. “You’re at best temporarily, at worst completely shielding someone you have reason to believe committed a crime because of politics.”
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
“The mission of the Department of Justice is ‘to uphold the rule of law, to keep our country safe, and to protect civil rights’”, lawyer Qasim Rashid wrote. “DOJ Values are ‘Independence and Impartiality.’ What about any of the above means ‘give deference to election years???’ This is unacceptable.”
Radio host Michelangelo Signorile added that “Garland doesn’t grasp that before you stabilize DOJ you have to get rid of the policies designed to protect criminals of prior administration”.
National security journalist Marcy Wheeler pushed back on those outraged by the memo, tweeting: “COME ON people. The reality is that the Attorney General would ALWAYS sign off on that high profile an investigation. In fact, panic-mongers have been claiming FOREVER that it was Garland’s decision alone, and not a hierarchy starting with a team of [Assistant US Attorney]”.
Broadcaster Charles Adler said that Mr Trump “will announce two years early that he is running for president for a third time, in 2024 - not because he wants to do public service. As always, it’s about him. It’s about keeping himself out of prison”.
“As predicted, nothing will happen to Trump and his associates, traitors who tried to overthrow our democracy”, Wajahat Ali tweeted. “They’ll all fail up. Why? To protect ‘institutions’ that have long since failed the American people.”
“By my humble interpretation of the legalese in this memo, it appears Merrick Garland is a cop-out”, Warren Macleod wrote. “We have a Justice Department without teeth! Instead of looking for reasons why we cannot investigate Trump, I wish he would look at the myriad reasons why we should!”
“Merrick Garland has now fully adopted, endorsed and extended Bill Barr’s 2020 DOJ policy through the 2022 and 2024 elections. Garland has doubled down on the bad faith policy of the most corrupt Attorney General in history,” author Don Winslow tweeted.
“80 million Americans didn’t vote to have Bill Barr’s policies extended. Barr’s Feb 2020 policy change was already a gross overreach designed at the time to protect Trump. All Garland had to do was go back to pre-Barr policy. He chose to EXTEND IT”, he added.
The Independent has reached out to the Justice Department for comment.
The full memo can be seen below.
Election Year Sensitivities
Department of Justice employees are entrusted with the authority to enforce the laws of the United States and with the responsibility to do so in a neutral and impartial manner. This is particularly important in an election year. Now that the 2022 election season is upon us, and as in prior election cycles, I am issuing this memorandum to remind you of the Department’s existing policies with respect to political activities.
I. Statements, investigations, and charging near an election
The Department of Justice has a strong interest in the prosecution of election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process. As Department employees, however, we must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and non-partisanship.
Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose, or the appearance of such a purpose, is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.
If you face an issue, or the appearance of an issue, regarding the timing of statements, investigative steps, charges, or other actions near the time of a primary or general election, contact the Public Integrity Section of the Criminal Division (“PIN”) for further guidance. Such consultation is also required at various stages of all criminal matters that focus on violations of federal and state campaign-finance laws, federal patronage crimes, and corruption of the election process. More detailed guidance is available in Sections 1-4 and 9-85 of the Justice Manual at http://www.usdoj.gov/usao/eousa/foia reading room/usam/.
Finally, Department employees must also adhere to the additional requirements issued by the Attorney General on February 5, 2020, governing the opening of criminal and counter intelligence investigations by the Department, including its law enforcement agencies, related to politically sensitive individuals and entities.
See Memorandum of Attorney General William Barr, Additional Requirements for the Opening of Certain Sensitive Investigations, February 5, 2020 (“February 2020 AG Memorandum”). Any questions regarding the scope or requirements of the February 2020 AG Memorandum should be directed to PIN.
II. Hatch Act
As you are aware, the Hatch Act generally prohibits Department employees from engaging in partisan political activity while on duty, in a federal facility, or using federal property. Please note that this prohibition includes using the Internet at work for any political activities. The Act also prohibits us from using our authority for the purpose of affecting election results; soliciting (or discouraging) political participation; soliciting, accepting, or receiving political contributions; and generally from running as a candidate in a partisan election.
In addition to restrictions on what Department employees may and may not do while on duty, while using government property, and in off-duty activities, certain employees are further restricted from engaging in certain political activity even while not on duty. The degree to which an employee is restricted in his/her off duty activities depends on his/her position, with further restrictions applying to members of the career SES, administrative law judges, Criminal Investigators and Explosives Enforcement Officers of the Bureau of Alcohol, Tobacco and Firearms, non-career appointees in the Department, and employees of the Criminal Division, National Security Division, and the Federal Bureau of Investigation. If you are unclear on these restrictions or the classification of your position, please consult with your component’s designated ethics official about the limits of permissible activity prior to engaging in any political activity.
You can also visit the Justice Management Division’s Ethics page at www.usdoj.gov/jmd/ethics/politic.html for more detailed information, which includes the most recent guidance issued by the Assistant Attorney General for Administration and links to memoranda issued to both career employees and non-career appointees dated June 10, 2020.
It is critical that each of us complies with the Hatch Act and the principles set out in this memorandum to ensure that the public retains its confidence that we are adhering to our responsibility to administer justice in a neutral manner. The Department’s reputation for fairness and impartiality depends upon it.