The special counsel Jack Smith’s two prosecutions against Mr. Trump — for election resistance and for misappropriating and mishandling classified documents — are the first against a former president. They are also the first by an executive branch whose top officials — once Joe Biden and now Kamala Harris — have been running for president against the target of the administration’s prosecution. It is much more vital in this context than ever before for the executive branch to take scrupulous care to assure the public that the prosecutions are conducted in compliance with pertinent rules.
On this score, Mr. Smith has failed. The brief he recently filed sought to show that the election prosecution can continue despite the Supreme Court’s immunity ruling. It laid out the government’s case against Mr. Trump with what many media reports described as bombshell new details about his wrongdoing. The filing is in clear tension with the Justice Department’s 60-day rule, which the department inspector general has described as a “longstanding department practice of delaying overt investigative steps or disclosures that could impact an election” within 60 days of it. However, the rule is unwritten and, as the inspector general made clear, has an uncertain scope.
The Justice Department does not believe it is violating this or any other rule. It expressed no concern about Judge Tanya Chutkan’s proposal to set the brief deadline close to the election or to reveal the information publicly in her discretion. (She made clear that Mr. Trump’s lawyers had not shown that her court is “bound by or has jurisdiction to enforce Department of Justice policy.”) Perhaps the department thinks the new disclosures are marginal and won’t affect the election or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.
But the department has not publicly justified its actions in the election prosecution, and its failure to do so in this highest-of-stakes context is a mistake….