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. . . the Justice Department — which oversees the FBI — not only explicitly prohibits employees from interfering with elections but urges employees avoid the appearance of interfering with elections.
In August 2008, President George W. Bush’s attorney general, Michael Mukasey, sent an internal memo entitled "election year sensitivities" to employees on the department’s policies on political activities. Part of it reads:
"Simply put, 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 investigative steps or criminal charges 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 is inconsistent with the Department's mission and with the Principles of Federal Prosecution."
Attorney General Eric Holder resent the memo in March 2012.
While the memos don’t discuss limitation of timing specifically, former U.S. attorneys have alluded to an unwritten guideline about not filing cases or commenting on investigations in the 60 days before an election.
Citing the policy, several former prosecutors and department employees have aired concerns and criticisms.
Two former deputy attorney generals under the Clinton and Bush administrations called Comey’s actions a departure from the department’s traditions and "real-time, raw-take transparency taken to its illogical limit."
Conservative Fox News host Jeanine Pirro, a former prosecutor and New York county court judge, said Comey’s letter "disgraces and politicizes" the bureau.
"You know I support Donald Trump and want him to win, but whether it's Hillary Clinton or anyone else, Comey's actions violate not only longstanding Justice Department policy … but the most fundamental rules of fairness and impartiality," Pirro said.
Daniel Richman, a former prosecutor and current Columbia Law School professor, noted that while the Justice Department’s election sensitivities policy does stand, Comey also had different obligations to consider.
Department policies "are subject to judgments by the highest officials in extraordinary circumstances," Richman said. "Less flexible is the FBI’s directors duty of absolute candor to Congress, requiring the correction of statements when new facts arise."
