On the heels of the recently-issued report regarding the firing of United States Attorneys that concluded that one top prosecutor, David Iglesias, the former U.S. Attorney for the District of New Mexico, was fired at least in part as a result of his reluctance to pursue GOP-pushed claims of voter fraud, one would think that DOJ would be particularly careful to avoid improper political decisionmaking and leaking in the midst of the presidential election. But the specter of inappropriate politicking seems to be rearing its ugly head once again in the Bush administration’s final days. High-ranking FBI officials recently leaked that the FBI is investigating whether the community activist group ACORN helped foster voter registration fraud around the nation before the presidential election. This leak is troubling on two fronts.
First, the leak itself is improper and possibly illegal. It is a federal crime, punishable by incarceration, for law enforcement personnel to disclose “a matter occurring before [a] grand jury.” It is likely that, if the FBI has opened an investigation, the power of a federal grand jury has been invoked. If a grand jury is investigating the situation, disclosure of that investigation by law enforcement personnel is a crime. Moreover, media reports of the leaks indicated that the leaking FBI officials themselves believed the leak to be improper, as each spoke on condition of anonymity based on a belief that leaking the pendency of the investigation violated DOJ regulations.
The law and policy against non-disclosure is important, because law enforcement should not cast the shadow of criminal allegations over individuals or entities until and unless sufficient evidence to charge has been gathered. A breach of the law and policy would be especially troubling here, where voting by traditionally underrepresented low-income and minority voters could be chilled. The FBI leak has led to calls for an investigation. Leak investigations are extremely difficult for various reasons, not the least of which is that much of the evidence is in the hands of news media, who operate under the protection of the First Amendment. But the FBI, and the Department of Justice of which the FBI is a part, should investigate, whether criminally or administratively, who leaked this information. And the leakers, if identified, should be punished.
Second, the timing of both the leak and the investigation’s commencement are also troubling. DOJ policy, set forth in DOJ’s own Manual on Federal Prosecution of Election Offenses, directs that, when investigating election fraud, three considerations absent from most criminal investigations must be kept in mind: respect for the primary role of the states in administering the voting process, an awareness of the role of the election in the governmental process, and sensitivity to the exercise of First Amendment rights in the election context. The policy cautions that “in most cases voters should not be interviewed, or other voter-related investigation done, until after the election is over” because such investigation might “chill legitimate voting activities” and “be perceived by voters and candidates as an intrusion into the election.”
The commencement and leak of this investigation only weeks before the presidential election, and immediately after claims of fraud by high-level Republicans (including the party’s nominees), may conflict with this policy, particularly its cautioning against intruding into an election. One would have hoped that, at the very least, the highly professional and bipartisan staff of Attorney General Michael B. Mukasey, who oversees the FBI and who it was hoped would purge the Justice Department of the incompetence and politicization seen under his predecessor, would have headed off these leaks with stern forewarnings.
The Justice Department does not currently have a deep reservoir of credibility with the public as we reach the end of the Bush administration. Thus the poorly timed investigation and improper public leaking likely will not have a significant negative effect on the electorate, and instead will disappear into the maelstrom of the partisan swirl surrounding the election. But that does not mean either was right, and it does not mean either should continue.