As the midterm elections near, top Justice Department officials are weighing whether to temporarily scale back work in criminal investigations involving former President Donald J. Trump because of an unwritten rule forbidding overt actions that could improperly influence the vote, according to people briefed on the discussions.
Under what is known as the 60-day rule, the department has traditionally avoided taking any steps in the run-up to an election that could affect how people vote, out of caution that such moves could be interpreted as abusing its power to manipulate American democracy.
Mr. Trump, who is not on the ballot but wields outsize influence in the Republican Party, poses a particular dilemma for Attorney General Merrick B. Garland, whose department is conducting two investigations involving the former president. They include the sprawling inquiry into the Jan. 6 riot and his related effort to overturn the 2020 election and another into his hoarding of sensitive government documents at his Florida club and residence.
A Justice Department spokesman declined to comment. But as the 60-day deadline looms this week, the highly unusual situation offers no easy answers, said Jack Goldsmith, a Harvard Law School professor and the former head of the Justice Department’s Office of Legal Counsel.
“It’s an unwritten rule of uncertain scope, so it’s not at all clear that it applies to taking investigative steps against a noncandidate former president who is nevertheless intimately involved in the November election,” Mr. Goldsmith said. “But its purpose of avoiding any significant impact on an election seems to be implicated.”
Despite its name, the 60-day rule is a general principle rather than a written law or regulation. Its breadth and limits are undefined. The Justice Department has some formal policies and guidelines that relate to the norm, but they offer little clarity to how it should apply to the present situation.