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If you are a federal prosecutor, you know not to interfere in an election. You know it because it is (and should be) the ethos of your office, or because someone explained the policy to you when you were new, or because you read the quadrennial memo issued by the attorney general. Regardless of how you first learned it, you understand what the policy says and what it means, and you obey it.

Yet the Justice Departments election policy is more ambiguous and thus potentially more subject to abuse than we might think. This is particularly concerning in light of Attorney General William Barrs hints that the department may, in advance of the 2020 election, release material from U.S. Attorney John Durhams review of the FBI investigation into the links between the Trump campaign and Russia.

The policy has remained remarkably similar across administrations. Whether prosecutors read the memo issued in 2008 by Attorney General Michael Mukasey, or 2012 by Attorney General Eric Holder, or 2016 by Attorney General Loretta Lynch, they read virtually similar guidance. All three memos were issued early (March or April) in the election year, bore the same title (Election Year Sensitivities) and contained the same two sections in the same order: one that addressed the Investigation and Prosecution of Election Crimes and one that addressed the Hatch Act, a federal law prohibiting executive branch employees from engaging in partisan political activity under certain circumstances.

Those three memoranda all state that Justice Department employees 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. They also encourage prosecutors to contact the Public Integrity Section of the Criminal Division for further guidance regarding the timing of charges or overt investigative steps near the time of a primary or general election.

This continuity has stretched into the Trump administration. In February 2020, Barr issued a memorandum with a different focus, though he cited the three previous election memoranda approvingly and noted that new requirements for opening sensitive investigations would be in addition to all existing policies.

But for all this continuity, ambiguities remain. When does the policy kick inthat is, what constitutes an act near the time of an election? Does that mean 60 days before an election? 90 days? After Labor Day (as one of us believed when he was a federal prosecutor)? The exclusion period is not specified, nor would that be a simple thing to do.

What if the Justice Department takes an overt investigative step for a purpose other than to affect an election? Is that okay? Imagine that the statute of limitations is about to run on a public corruption case and the target of that casea public official running for reelectionrefuses to sign a waiver extending that period, as is his right. Then, charging that official just before the election is not for the purpose of affecting the election. Rather, it is for the purpose of preserving the charge. And the indictment is arguably both appropriate and within the policy.

Similarly, we can think of other sensible exceptions to the policy. Imagine if, during a court authorized wiretap shortly before an election, FBI agents overheard a plan to kill a witness. That would necessitate an overt investigative step to stop the murder, and few (we trust) would quarrel with it.

And, by the way, what is an overt investigative step? Consider the issuance of a grand jury subpoena to a witness in a public corruption case in which the subject of the investigation is a member of Congress standing for election. Would this be a covert investigative step, because federal rules of procedure impose a secrecy obligation on prosecutors and agents and grand jurors not to speak about those proceedings? Or is it an overt investigative step, because no such secrecy obligation is imposed on the witness receiving the subpoena and her lawyer? Ryan Goodman, in an excellent article on what he calls the rule of forbearance, describes one former U.S. attorneys concern with this sort of issue in the run-up to the 1992 presidential election.

What if refraining from taking an overt step near an electionas the policy counselsimproperly favors one candidate over another? Can the department do nothing and arguably violate the policy? We think so, and that is precisely the dilemma that confronted Preet Bharara, former U.S. attorney for the Southern District of New York, as recounted in his book, Doing Justice.

In 2011, the Bronx district attorney indicted under seal a New York state legislatorNelson Castroon corruption-related charges. Bhararas federal office, at the request of the district attorney, partnered on the case. Castro then decided to cooperate against a group of dishonest Russian businessmen and against another corrupt member of the state legislature, Eric Stevenson, including by wearing a wire. As the election approached, Bharara faced a dilemma:

The entire state assembly was up for reelection in November 2012. And here we were, in the fall of 2012, with Assemblyman Nelson Castros guilty plea still sealed, his wearing a wire still secret, his cooperation still unknown. As the election neared, we had a decision to make. Do we compel [his] resignation to allow a non-corrupt officeholder to take his place? Or do we continue the secret investigation? It was not an easy question to answer. The case was not ready. To stop now or to unseal the charges against Castro could spook the Russians and halt the collection of damning evidence. It would warn the other assemblyman, Eric Stevenson. Also, apart from the case we were developing against the Russians, Nelson Castro was attempting to help us investigate other individuals, and those investigations were at a very early stage. If we did nothing, we would be arguably complicit in the reelection of a corrupt figure who we knew would not finish out his term.

Was it fair to deprive Castros constituents of a different and hopefully more honest representative for some number of months as the investigation progressedthat is, before Castros guilty plea was unsealed and before he resigned from office? Was it appropriate to deny another presumably noncorrupt individual from taking that office sooner? Was it fair to Stevensons constituents to permit him to continue to serve as the Castro case remained sealed and the investigation progressed? And would it have been fair if the Castro case was revealed too earlyand Stevenson was not prosecuted as a result, though prosecutors had good evidence that Stevenson was corrupt, too? As Bharara reflected, did we defraud the public or do a public service?

Whats more, did prosecutors obey or violate the Justice Department policy? It seems as if the Southern District of New York advantaged at least one candidate (Castro) and disadvantaged another (Castros opponent) by keeping the case sealed and continuing the investigation. For what it is worth, we think Bharara made the right choice and did a public service. But the second questiondid prosecutors violate the policy?is exceptionally difficult.

And if the Castro case is difficult, how about a matter that is outside the heartland of the policylike the issuance by the Justice Department of a report examining conduct prior to the 2016 election? In May 2019, Barr appointed U.S. Attorney for the District of Connecticut John Durham to examine the circumstances surrounding the investigation of the Trump campaigns connections with Russia. Durham is a career prosecutor with an excellent reputation, has handled high-profile public corruption cases and undoubtedly knows Justice Department policy with respect to elections. Nor is this his first difficult or prominent assignmentAttorneys General Mukasey and Holder both previously tasked Durham with sensitive investigations for the Justice Department. (One of us, Rosenberg, was a witness in one matter.)

The public knows relatively little about what Durham is doing. Durham does not talk about his work publicly (with one disappointing and notable exception). Barr has said Durhams findings will be released in a report. We worry that it will be released as an October surprise for the purpose of affecting the electionsomething the policy would normally forbid.

Barr has suggested that the release of the report just before the election would not violate Justice Department policy, because Durham is not focused on a particular candidate and the report is not for the purpose of interfering in an election. We see two problems here. First, as noted, the policy is not entirely clear. Prosecutors acting in good faith fully understand what the policy says and, separately, what it means, and have obeyed it. But Barr has room to argue that the release of the report is not an overt investigative step and that the policy is inapplicable because Durham is not pursuing criminal charges against Biden or Trump. We think, however, that this misses the point.

The second problem, and the larger one, is Barr. In the absence of a clear and unambiguous policy, prosecutors and agents have always relied on the norms of the Justice Department to do their work. Again, we understand both what the policy says and what it meanstwo different but related things. Stated another way, we understand both the letter and the spirit of the policystay very far away from elections. Norms govern the work of the Justice Department as much as laws and regulations and policies. But Barr has routinely ignored norms to serve a president who has continually and improperly interfered in the work of the Justice Department. Will Barr now ignore both what the policy says and what it means to advance the presidents political fortunes?

Certain things cannot easily be reduced to writing. Justice Potter Stewart could not devise a practicable definition of obscenity in Jacobellis v. Ohio, relying on his famous I know it when I see it construction to explain why the material at issue in that case was protected by the First Amendment and could not be censored. And though Stewarts characterization lacked precision, we know what he said and we know what he meant. It made sense. The ethos of the Justice Department here makes sense, too. We hope that Barr understands, applies, and adheres to that ethos. We hope he will follow both what the policy says and what it means. Sadly, we doubt he will.

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The Justice Department's Policy Against Election Interference is Open to Abuse - Lawfare

Former Attorney General Eric Holder told Yahoo News Thursday that Postmaster General Louis DeJoy should absolutely face a criminal investigation to determine if he violated federal law making it illegal to tamper with the mail.

There is no question about that, Holder told the Yahoo News Skullduggery podcast in an interview. You tell me: Why would you be taking offline, right now, machines that do mail sorting at high speeds? Why would you be taking mailboxes off the street? Why would you be restricting the amount of overtime that postal employees can spend as were about to enter a period where the mails are going to be really important for this nation to handle a huge number of vote-by-mail ballots? There is clearly an indication that this is something thats political in nature.

Holder made the comments after being asked whether Postal Service cutbacks ordered by DeJoy violate a criminal law (18 U.S.C. 1701) that says anyone who knowingly and willfully obstructs or retards the passage of the mail or any carrier or conveyance carrying the mail is committing a crime.

Public pressure to fix the Postal Service disruptions has mounted as the cutbacks have begun to take a toll, particularly in rural communities. DeJoy, who has given large sums of money to President Trumps election campaign, was tapped in May to run the agency. On Tuesday, DeJoy said he would reverse course to avoid even the appearance of any impact on election mail. But shortly after that pronouncement, the Postal Service nonetheless instructed managers not to reconnect mail sorting machines that had been disconnected, a development first reported by Motherboard at Vice News.

Holder said he does not expect this administration to initiate a criminal investigation, but said one must be conducted.

This is something that is so serious that I think that the next attorney general, the next iteration of the Justice Department, has to look into what happened here, Holder said. Whether or not it has an impact on the election or not, the attempt to subvert the election is something that has to be looked at post-Jan. 20.

The service cuts, equipment removal and other moves made by DeJoy at the agency could affect the Postal Services capacity to handle the volume of mail expected as the country approaches the November election because nothing has been done to restore what was cut, Holder said.

With regard to the machines that have been taken offline, hes not going to put them back online, he's not going to increase the amount of overtime that people can spend, and he's not going to put back on the streets the post office boxes, Holder said. So hes done really essentially nothing to make up for what at best could be an error and what I suspect really was a political attempt to support the Trump reelection effort.

Holder, a longtime Democrat who served as attorney general through most of the Obama administration, said he has been struck by the large number of Trump administration officials who have been arrested or charged with crimes. The comment came as the former attorney general reflected on the news that former Trump adviser Steve Bannon had been charged with fraud for a fundraising campaign he mounted to pay for a private border wall.

Too much of this administration has essentially been a grift, a fraud, and Bannon is just the latest in a long line of the presidents men who have been charged with crimes, convicted of crimes or who have been sent to jail, Holder said. This is probably the most corrupt administration that we have seen, maybe in the history of this country.

Holder has long worried about what he has called a politicization of the Justice Department under Trump. He said he is not reassured by the fact that Trumps Justice Department charged Bannon with fraud.

This attorney general has shown himself to be the confidant, the lawyer for the president, as opposed to the lawyer for the people, interposing himself in cases in a way that no attorney general that Im aware of has ever done, he said. Its also interesting he only kind of gets involved in cases where its the presidents guys who are having problems. How many drug cases has he gotten involved with?

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Chuck Quirmbach reports on election-year efforts to protect Gov. Evers' veto clout.

Wisconsin Gov. Tony Evers says one priority this fall is to help fellow Democrat Joe Biden become president. Evers says another key goal is to hold on to his veto power over Republicans in the state Legislature.

Evers is getting some high-profile assistance with that state politics effort.

The GOP controls both legislative chambers in Madison, but on party-line votes, is a few short of the two-thirds majorities needed to override a gubernatorial veto. Evers told a webcast organized by the Wisconsin Democratic Party Thursday that he and party leaders have been raising money for a program called "Save The Veto."

"I put raising money for myself and my [2022] reelection on hold. Bottom line is, we must protect my veto for a whole bunch of reasons, Evers said.

He said the key reason is to be able to veto an expected Republican redistricting plan next year, one that would redraw legislative boundaries for the next decade. The governor says the fundraising has brought in millions of dollars tohelp Democratic incumbents and challengers this fall in potential swing districts.

Former Obama administration Attorney General Eric Holder told the webcast the legislative races in Wisconsin are very important. "This is an existential presidential election. I get that. But so are the races happening down the ballot in Wisconsin as well, Holder said.

Holder said he took part in a fundraiser last week for Wisconsin Democrats running for the legislature. Holder, chair of the National Democratic Redistricting Committee, has been involved in several other Wisconsin contests in the last few years.

For example, Evers credits Holder's past money-raising for helping him defeat Republican incumbent Scott Walker in the 2018 race for governor.

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Evers, Holder Highlight 'Save the Veto' Election-Year Effort In Wisconsin - WUWM

Young people who vote: They are the holy grail of any presidential campaign, but regularly getting them energized and excited is a yet-to-be-cracked formula.

But maybe excited is too high a bar. Ilana Glazer, the comedian and co-creator of the TV series Broad City, has a new project that rests less on building on enthusiasm for the Democratic ticket, and more on enthralling people with how voting can bring about tangible change. In this case, that change is getting rid of President Trump.

Shes approaching it from a shared antipathy to the occasionally pedantic nature of politics, which she feels can intimidate younger or newer participants.

I really resent how Im supposed to feel stupid if I dont know how the system works, Ms. Glazer said in an interview. The system is perfectly designed to evade me.

After what she described as the nightmare election of 2016, Ms. Glazer, 33, dedicated much of her past four years to progressive activism through her nonprofit group, Generator, aiming to connect with exactly that kind of uneasy liberal. Now, in the final, 70-day sprint to the election, Ms. Glazer is teaming up with the liberal super PAC Pacronym and introducing a new project titled Cheat Sheet for the Voting Booth.

In 2016, the 18-to-29 voting bloc had the lowest turnout percentage in the general election, despite relentless outreach and targeting from both presidential campaigns.

For their youth outreach efforts, campaigns usually rely on celebrities with huge appeal to young audiences. But rarely have celebrity-backed videos cut through to the intended audience.

Ms. Glazer is trying a slightly different approach, she said. Shes just going to talk to some of her friends about the election, and why theyre excited to vote, and hope some younger people listen. Maybe theyre not stoked about a President Biden, but theyre definitely infuriated by Mr. Trump.

In a series she describes as having a similar vibe to Broad City, Ms. Glazer is tapping her friends with connections to key swing states Zo Kravitz, Wanda Sykes, Eric Andre and her fellow Broad City star, Abbi Jacobson, to name a few for a 20-part web series that will feature conversations between friends about politics, the election, and coming around to Joseph R. Biden Jr. Pacronym will then edit the episodes and integrate them into a multimillion-dollar ad campaign in six battleground states: Arizona, Georgia, North Carolina, Wisconsin, Michigan and Pennsylvania.

No matter what, the white supremacist, narcissistic, sociopathic individual occupying the White House has got to go, Ms. Glazer explains in the projects introduction. And he needs to be SHOVED out; he needs to lose by a landslide, baby.

The idea for the project is to try to connect with, and energize, a voter who is not obsessively following day-to-day political news but is worried about the state of the country. Often, that description applies to notoriously finicky youth voters.

A lot of the celebrity engagement is really overproduced and watered down, and what we usually see on campaigns are highly produced, direct-to-camera videos for surrogates, said Tara McGowan, the founder of Pacronym. They dont hit a cultural nerve the way their actual work does that made them influential.

With Cheat Sheet for the Voting Booth, Ms. Glazer and Ms. McGowan are hoping to lead with what would draw in viewers Ms. Glazers manic brand of comedy and, eventually, get to the campaign.

The project is the coronavirus-friendly reduction of what had been an expansive election-year comedy and politics schedule for Ms. Glazer. Between a Horny 4 Tha Polls national standup series and Genny Socials, which are dance parties mixed with brief political stump speeches, Ms. Glazer was planning to spend the year touring the country and motivating voters toward the twin goals of progressive causes and voting out Mr. Trump.

It kicked off with some notable successes.

We had Eric Holder dancing to George Clinton, Ms. Glazer recalled of an early Genny Social. It was wild. He was like getting low and saying, Bill Barr cant do this! And I was like, You better believe Bill Barr cant do this!

For Ms. Glazer, who describes the so-called Squad of progressive women in Congress as superheroes, the project is also about building progressive energy for Mr. Biden through a focus on the down-ballot candidates, a new generation of leaders who could be the next Squad.

But shes also hoping to also help people simply cast away the cynicism and embrace the power of voting, a line of messaging that academics have found particularly resonates with younger voters.

First-time voters especially need to believe that political engagement makes a real tangible difference in their lives, and thats what weve seen with our polling since 2017, said Mark Gearan, the director of the Harvard Institute of Politics. He said that with the pandemic and the protests against police brutality, young people were directly confronting political issues in a more involved way.

I think this is a once-in-a-generation moment for young people, he said.

Ms. Glazer hopes to help find those with that same energy, but perhaps less political knowledge, and persuade them to vote.

Their vote matters as much as Jeff Bezoss vote, Ms. Glazer said, peppering in some excitement-tinged profanity. Its such a cool thing about America.

She said she was worried that some people might think their vote doesnt count because that might be the message they are hearing. She is working to counteract that.

I would say, young people, I want them to know how much power they have, and how much their experiences and stories matter, she said.

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Ilana Glazer of 'Broad City' Looks to Energize the Youth Vote - The New York Times

MADISON (WKOW) -- How crucial winning the battleground state was a popular theme among Democrats across the country during virtual events leading up to the final day of the Democratic National Convention.

While the statement is no surprise to many, House Speaker Nancy Pelosi stressed this election is all riding on Wisconsin during a virtual meet up with Democrats.

Pelosi also spoke to the importance of people showing up this presidential election after President Trump narrowly defeated Hillary Clinton by fewer than 23,000 votes during the 2016 general election in Wisconsin.

Former Attorney General Eric Holder also delivered remarks on the virtual meeting, calling a Democratic victory in Wisconsin is a loss for Trump.

The fate of the United States, the fate of the Western World is on your shoulders, not too much pressure, said Holder. If Joe Biden carries Wisconsin it will be incredibly difficult for Trump to win reelection.

Throughout this week Trump, Vice President Pence, and other surrogates have traveled to the state hosting events to counter the Democratic convention. A general theme for Republicans has been mocking Biden for choosing not to accept his nomination in Milwaukee because of concerns over the coronavirus.

No amount of lip service from Joe Biden can hide the fact that he has turned his back on Wisconsin, said Anna Kelly, Trump Victory spokeswoman.

From his radical policies that would upend the Wisconsin economy, to snubbing Wisconsinites by refusing to campaign in person, Badger State voters know that Joe Biden does not have their back.

Tonight, Biden will formally accept his nomination virtually in Deleware. Meanwhile hours before Biden speaks, President Trump plans to hold an event outside the former vice presidents birthplace in Scranton, Pennsylvania.

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Democrats stress the importance of Wisconsin during final convention day - WKOW