DOJ-002 — Proposed Justice Manual § 9-85.115 — Politically Sensitive Criminal Matters

9-85.115 — Politically Sensitive Criminal Matters

A. Purpose

Federal criminal authority shall not be initiated, directed, timed, or used to coerce, retaliate against, disadvantage, or confer political benefit upon any person, organization, governmental entity, candidate, party, news organization, or protected expressive association. This section does not confer immunity. It establishes heightened procedures to ensure adequate criminal predication, political neutrality, proportionality, and protection against actual or apparent misuse.

B. Covered Matters

A politically sensitive criminal matter includes an investigation, preliminary inquiry, grand-jury matter, charging decision, declination, dismissal, plea agreement, sentencing position, or other prosecutorial action in which a subject, target, proposed recipient of compulsory process, or materially affected person is:

1. a federal, state, Tribal, territorial, or local elected official;
2. a candidate, campaign, political committee, political party, presidential transition, or inaugural committee;
3. a person publicly identified by the President, Vice President, Attorney General, or another senior political appointee as an ally, opponent, adversary, or desired investigative target;
4. a state, Tribal, territorial, or local government or senior official acting for it;
5. a news organization, journalist, publisher, broadcaster, documentary producer, or person engaged in newsgathering;
6. a nonprofit, advocacy, religious, academic, labor, civic, or membership organization substantially engaged in protected speech, association, petitioning, protest, or political activity; or
7. a person or entity whose selection could reasonably appear retaliatory, coercive, selective, or politically motivated.

The section also applies where the matter substantially concerns protected political expression, disagreement with federal policy, refusal by a state or locality to provide assistance not required by law, campaign or election activity, journalism, or conduct in which the White House or a political appointee has expressed particular investigative or prosecutorial interest.

C. Political Neutrality Memorandum

Before opening a preliminary or full investigation, the responsible component shall prepare a written memorandum stating:

1. the potential federal offenses;
2. the factual basis and reliability of the information;
3. the legitimate federal law-enforcement interest;
4. protected speech, association, journalism, petitioning, or federalism concerns;
5. materially comparable matters and the standard applied to them;
6. all White House, political-appointee, campaign, party, transition, or inaugural contacts;
7. whether the proposed action could reasonably appear retaliatory, coercive, selective, or politically motivated;
8. less intrusive alternatives considered; and
9. why the matter is necessary and proportionate.

D. Consultation and Approval

Consultation with the Public Integrity Section is required before opening or materially expanding a covered investigation, presenting evidence to a grand jury, taking an overt public step, materially changing the theory, or declining, closing, dismissing, or narrowing a matter after political contact.

Prior written Public Integrity approval is required before:

1. issuing compulsory process to a covered person or entity;
2. seeking a search warrant, tracking authority, communications data, surveillance, or delayed-notice authority;
3. directing an undercover employee, source, or cooperator to contact a covered person;
4. compelling associational, donor, membership, newsgathering, or source-identifying records;
5. filing or materially altering charges;
6. entering a deferred-prosecution, non-prosecution, plea, dismissal, or material sentencing decision; or
7. taking action reasonably likely to affect an election, legislative proceeding, governmental policy dispute, or protected public debate.

Approval requires written findings of adequate predication, legitimate purpose, necessity, proportionality, inadequate less-intrusive alternatives, neutrality toward protected activity, consistent treatment of comparable matters, and disclosure of political contacts.

E. Political Contacts

All communications concerning a covered matter with the White House, Executive Office of the President, political appointees outside the ordinary supervisory chain, campaigns, parties, transitions, inaugural committees, or persons acting for them shall be logged contemporaneously. The record shall identify participants, time, subject, requests or suggested outcomes, responsive action, and the legal and policy basis for that action.

A covered action may not proceed until Public Integrity has reviewed any such contact and found an independent and sufficient law-enforcement basis. Attempted improper direction, retaliation, coercion, or circumvention shall be reported to OPR and, where appropriate, OIG.

F. Judicial Process

When seeking judicial authorization or enforcement in a covered matter, DOJ shall disclose under seal that the section applies, that required review occurred, whether political contact occurred, whether review was waived or modified, and any material fact necessary to avoid misleading the court concerning predication, purpose, necessity, proportionality, or political influence. Disclosure remains subject to grand-jury, classification, privilege, privacy, and other lawful restrictions.

G. Emergency Exception

An otherwise covered action may proceed without prior review only when delay creates a substantial and imminent risk of death, serious bodily harm, flight, evidence destruction, operational compromise, national-security harm, or expiration of a nonextendable legal deadline. The responsible United States Attorney or Assistant Attorney General shall document the emergency and notify Public Integrity within 24 hours. Disagreement, inconvenience, or expected denial is not an emergency.

H. Continuing Review

Open covered matters shall be reviewed at least every 90 days for continuing predication, necessity, proportionality, political contacts, burden on protected activity, narrowing, closure, and possible corrective or disciplinary action.

I. Record Preservation

All memoranda, approvals, consultations, contact logs, dissents, emergency determinations, periodic reviews, and closure records shall be preserved in the official file and a protected central repository. A change in leadership, policy, theory, or disposition does not authorize alteration or destruction.

J. Amendment, Suspension, and Waiver

This section may not be generally suspended, waived, or materially amended except by a written Attorney General directive identifying the affected provisions, explaining the legal and policy basis, addressing risks of retaliation and selective enforcement, and providing advance notice to OIG, OPR, and the House and Senate Judiciary Committees. The directive shall be public except for lawfully protected portions.

A weakening may operate only prospectively and may not govern a matter already opened unless it affords greater protection. A case-specific waiver may not be approved by an official who participated in political contact concerning the matter.

K. Noncompliance

Noncompliance shall be reported to Public Integrity, OPR, and, where appropriate, OIG. Corrective action may include reassignment, disqualification, withdrawal or reconsideration of process, corrective disclosure to a court, reconsideration of disposition, discipline, and congressional notice. This section creates no private right of action except as otherwise provided by law.

L. Equal Application

This section shall apply without regard to party, ideology, viewpoint, office, relationship to the President, or whether the proposed action benefits or burdens the current Administration. Its purpose is not to shield politically connected persons, but to ensure adequately predicated, neutral, consistent, and lawful use of federal criminal authority.

Budgetary Impact Statement

Administrative workload is possible; no new appropriation is specified.

Note: Preliminary ARRP assessment only; not a CBO, OMB, agency, or legislative-counsel score.

Drafting Notes

• The proposal extends an existing Public Integrity review model rather than creating a new institution.
• Consultation governs lower-risk steps; prior approval is reserved for coercive or disposition-determinative actions.
• Transparency and prospective-only amendment increase political and institutional cost without falsely claiming that an internal manual provision can legally bind future Attorneys General.
• Statutory codification remains a fallback if experience shows the internal rule can be suspended, evaded, or ignored.

Source Notes

• Baseline source review should include the Justice Manual's current Protection of Government Integrity provisions, including existing Public Integrity consultation and approval models.
• Publication review should also test the reviewer-selection design against DOJ workload and component expertise. Public Integrity is the current least-complex analogue, but practitioner review may show that some covered categories should route to another career component, OPR, OIG, or a cross-component review process.
• Pending executive-power and removal-power cases should be treated as background judicial-risk sources rather than direct controls on this proposed Justice Manual amendment unless a later decision squarely addresses internal DOJ review rules, White House/DOJ contact controls, or prosecutorial-supervision procedures.