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Luke Cass quoted in the article “Bill Barr’s Hidden Truths About Justice Department’s Rule of Forbearance in an Election”

Just Security

Below is an excerpt:

Notably, with a differing view, Luke V. Cass, former a Senior Trial Attorney with the Public Integrity Section of the Criminal Division:

“Consistent with the DOJ’s “Election Year Sensitivities” memo, law enforcement officers and prosecutors should never select the timing of an investigation or criminal charges to influence an election, or to give any advantage to a specific candidate or party. That’s a Cardinal rule and the federal agents and prosecutors that I worked with were all of the highest integrity. I do not think any of them would be party to, or stand for, that type of improper conduct, which was antithetical to our mission to seek justice and to our values of living in a democracy.

Attorney General Holder’s memo was thoughtful guidance to prevent DOJ activities from interfering with free and fair elections, but I would have to agree with Attorney General Barr’s assessment that it is not without limits. The memo itself lists several specific categories of offenses, namely, “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.” In my view, it is not a prospective bar on prosecuting anything election-related during an election year. I also note that internal DOJ guidance is not intended to, and does not, create any enforceable rights, or place any limitations on otherwise appropriate litigation options. See Justice Manual § 1.1.200; see also United States v. Lee, 274 F.3d 485. 493 (8th Cir. 2001); United States v. Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999); United States v. Wilson, 413 F.3d 382, 389 (3d Cir. 2005) (all holding the same).

In my experience, every criminal investigation has a rhythm of its own, and that is often what determines timing for several key points such as when proactive investigative steps are taken, or when charges are publicly announced.”

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