The Justice Department has undertaken a series of high-profile actions and cases in the lead-up to the midterm elections, drawing criticism from defense lawyers and Democrats who contend the timing and targets suggest political motivation. These actions include escalating an investigation into U.S. Rep. Ilhan Omar with a search of her home, bringing criminal charges against two former FBI officials accused of downplaying their knowledge of investigations involving Hunter Biden, revealing an attempt to prosecute former FBI Director James Comey, and making an unsuccessful effort to indict a former White House aide who testified about efforts to overturn the 2020 election.
These moves, along with lawsuits in Alaska and California related to voting, are notable not only for their proximity to the election but also because they largely have been directed at vocal critics of former President Donald Trump or at issues significant to the Republican base. The department has also employed unusual tactics, such as bypassing grand juries to file cases against Comey and the ex-FBI officials in Washington D.C., where securing indictments has proven challenging.
"Never in the modern history of the Department of Justice has there ever been such a brazen disregard for time-honored norms and protocols in conceiving of or undertaking politically sensitive investigations," said David Laufman, a former senior Justice Department official. The department, however, stated it is "following the facts and the law, not anyone’s political timetable."
Historically, the Justice Department has adhered to a practice of avoiding overt investigative actions against candidates or making public steps that could appear to influence political outcomes in the weeks before an election. This informal practice, often guided by department-wide memos during election cycles, aims to prevent prosecutors from timing actions to affect an election. The department has clarified that its policy does not require halting ongoing work during an election season, emphasizing that the standard is the purpose of the action, not its proximity to Election Day.
This principle was notably tested in 2016 when then-FBI Director James Comey informed Congress about the revisiting of the investigation into Hillary Clinton's handling of classified information just days before the election. Comey's decision faced significant criticism from Democrats, and was later scrutinized by the Justice Department inspector general.
Attorney General Todd Blanche has maintained that the Justice Department operates independently of the White House and that its investigative decisions are not political. Nevertheless, prior to this month's intensified activities, the department had already initiated inquiries into figures perceived as adversaries of former President Trump. This included an investigation based in Florida, which Trump allies had hoped would substantiate theories of a conspiracy against him by former law enforcement and intelligence officials.
Among the most sensitive actions this month was the federal search of Rep. Omar's home, an outspoken critic of the former president. Omar, who was on the ballot for reelection, had her phone seized as investigators probe issues related to her immigration paperwork. Attorney General Blanche defended the timing of the search, stating it had "nothing to do with what’s happening in November."
Separately, the Justice Department charged two former FBI officials with making false statements to Congress regarding their knowledge of a laptop believed to belong to Hunter Biden. This case emerged from an investigation initiated shortly after a July speech on election security. The officials were charged by complaint rather than a grand jury indictment, a move described as unusual by the magistrate judge overseeing the case.
Additionally, unsealed court documents revealed attempts to bring a third criminal case against former FBI Director James Comey, related to alleged leaking of classified information a decade ago. Prosecutors used an uncommon legal tactic to extend the statute of limitations for seeking a grand jury indictment. Comey's legal team has labeled the action as legally invalid and politically motivated, while former President Trump has publicly referred to Comey as a "dirty cop."