Justice Department political appointees cannot participate in campaign-related activities in any capacity, Attorney General Merrick Garland said Tuesday, describing the change as necessary “to maintain public trust and ensure that politics – both in fact and appearance – does not compromise or affect the integrity of our work.”

The new policy underscores the intense political scrutiny Garland is facing two months before the midterm elections, as his agency investigates former president Donald Trump’s handling of classified documents since leaving office and the potential involvement of Trump and other Republican politicians in efforts to overturn the results of the 2020 presidential election.

Since the unprecedented Aug. 8 FBI search of Trump’s Florida residence in connection with the investigation of the documents, the former president has repeatedly accused the Justice Department of being a politicized organization that is out to hurt him.

The notices Garland sent to employees of the sprawling federal law enforcement agency on Tuesday aren’t unusual; attorneys general typically send reminders of employees’ rights – and restrictions – around political expression. But Garland made a notable change to the policy, altering a rule that said government appointees could “passively” participate in partisan activities with permission. The new rule allows for no exceptions.

“As Department employees, we have been entrusted with the authority and responsibility to enforce the laws of the United States in a neutral and impartial manner,” Garland wrote. “In fulfilling this responsibility, we must do all we can to maintain public trust and ensure that politics – both in fact and appearance – does not compromise or affect the integrity of our work.”

In his memo, Garland outlines how political appointees should adhere to the Hatch Act, which prohibits civil servants from running for partisan office or using their title or government resources while engaging in political activities – though most civil servants still have a First Amendment right to political expression on their own time.

Political appointees – commonly referred to as “non-career appointees” – previously were allowed to attend political events in some cases, including if they had close relatives running for office or had gotten permission from their bosses. They could also attend events in their personal capacity on Election Day. That is no longer the case.

“I know you agree it is critical that we hold ourselves to the highest ethical standards to avoid even the appearance of political influence as we carry out the Department’s mission,” Garland wrote. “It is in that spirit that I have added these new restrictions on political activities by non-career employees.”

Trump has a long history of excoriating the FBI and accusing agents and senior officials of being politically motivated. For years, he has highlighted that former FBI deputy director Andrew McCabe’s wife, Jill, ran for political office in 2015 and received campaign donations from a group controlled by then-Virginia Gov. Terry McAuliffe, a Democrat and longtime ally of Bill and Hillary Clinton.

Andrew McCabe, who was running the FBI’s Washington Field Office at the time, and his wife met with McAuliffe at the governor’s mansion before a political event, according to a 2018 inspector general report. The inspector general found that McCabe rightly recused himself from an investigation involving McAuliffe and that there was no evidence he “participated in making or supervising substantive decisions” in the case.

Garland made the announcement about employee political activity just days before the Justice Department enters its traditional 60-day “blackout” period ahead of the midterms. During this time, the department typically refrains from taking public steps in politically related cases – such as executing a search warrant or indicting someone – that could be perceived as politically motivated and could affect the results of the election.

Officials still respond to court deadlines during this period, and grand juries – which operate behind closed doors – can still convene in potentially high-profile political cases.

The blackout is not an official law or policy, though Justice Department officials generally try to adhere to the rule when investigating cases involving candidates, said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, a legal advocacy organization. He said the blackout also can apply to cases affecting politicians whose influence is important in upcoming elections.

“It generally would impact people who are currently on the ballot,” Bookbinder said. “Donald Trump is a sort of weirdly special case. He’s not in office, and he’s not in the moment running for office, but some people would argue that anything that happens to Donald Trump could impact the next election.”

Garland also sent a memo to employees Tuesday reminding them that they cannot communicate with senators, representatives or congressional committees without approval from the Office of Legislative Affairs, an office within the Justice Department.

 

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