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Monday, January 18, 2016

Candidate Immunity? When the Justice Department Targets Candidates

Your status as a candidate might delay official action by the Department of Justice against you, according to this 2007 publication from the Department's Public Integrity section.

That's because DOJ has long aimed to "ensure that an investigation is timed in a manner that does not interfere with the adjudication of the election itself." (See page 87). The DOJ guidelines also caution prosecutors to consider "whether an investigative step under consideration has the potential to affect the election itself." (Page 91) Similarly, the guidelines state an exception to this approach "may" apply where "it is possible" to both complete an investigation and file charges "prior to the period immediately before an election." (See pages 92-93) 

As such, one may infer an unofficial 'safe harbor' from prosecution for candidates who are or may be under federal criminal investigation, which might delay -- but not preclude or prevent -- the timing of an indictment, in order to avoid affecting the outcome of an election.

There are campaign or candidate partisans who fervently hope that legal action, e.g., an indictment, will accomplish for them what an election might not. However, these DOJ guidelines suggest (but do not mandate) that official discretion should be exercised to avoid interfering with the outcome of an election.

The Justice Department publication makes for a fascinating read for those of you with the patience to read through hundreds of pages of analyses as to the commonality of broader types of corruption extending beyond crimes touching on the right or process of voting. However, readers are cautioned that the publication, released in 2007, predates the dawn of modern social media which has created new avenues for opportunities for mischief, e.g., new media.

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