• Show Notes

The phrase “the silly season” was a late 18th century term used to refer to late summer, when parliament was out of session and the news reports of the day focused on trivial or frivolous matters for lack of major news stories. In its more modern, American usage, it refers to the run-up to a presidential election. In 2012, for instance, American professor and Reverend Michael Eric Dyson said, “It’s 105 days until the presidential election. And the political silly season is in full swing.” The further into the season we get, the worse it is. And, the presidential silly season now lasts longer than it did a decade ago—with six Republican candidates formally declared and more waiting in the wings, the start of the next silly season is not far off.

Federal prosecutors know this. That’s because they are required to avoid taking steps in their cases that could unduly influence the outcome of a political race.

The official policy says, “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charge, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.” There is no precise cutoff date or formal rule prosecutors are required to abide by. But federal prosecutors know they must avoid investigative steps, filing new cases, or taking action in existing ones that could influence the outcome of an election. The open question is, how close is that? 30 days? 60 days? Longer? 

The marker varies in different offices. It makes sense to give prosecutors some flexibility to ensure critical investigative steps aren’t hampered, cases aren’t delayed to the government’s detriment, or people under investigation aren’t provided with a strategic advantage that could damage a potential prosecution. And of course, there is more than just one election to consider; there are primaries and runoffs in addition to the general election. Even without a firm deadline, prosecutors get the point: Don’t use DOJ to influence elections. Err on the side of caution.