The Justice Department has a long-standing norm — several overlapping norms, really — that the people who enforce federal law should not moonlight as campaign talent. This week the department resolved the tension between that norm and its current leadership’s calendar by rewriting the rules. A memo from Assistant Attorney General Jolene Ann Laurie relaxes ethics restrictions on Senate-confirmed presidential appointees so they can speak at rallies, canvass for votes and even serve as delegates or officers of a national political party, CBS News reported, as long as the activities are conducted in their personal capacities. PBS News first reported the guidelines.
The covered population is not small: the attorney general, the deputy attorney general, assistant attorneys general, the FBI director, U.S. attorneys and others. The memo specifically exempts these presidentially appointed, Senate-confirmed employees from the more stringent guidelines that still bind other DOJ staff, such as administrative law judges and employees of the Criminal Division. File that away; it is the joke at the end of this article.
This is not the first turn of the ratchet. Former Attorney General Pam Bondi loosened the regulations during her tenure to let political appointees attend rallies and fundraisers — spectating, essentially. The new memo upgrades appointees from spectators to participants: now they can hold the microphone, knock the doors, wear the delegate badge.
Understandably so, since the current attorney general had already been doing it. Todd Blanche addressed the Republican midterm convention in September and attended a rally for a North Carolina Republican Senate candidate, drawing criticism that he had violated the department’s long-standing norms separating law enforcement from politics. “I am not in any way violating any rule or law,” Blanche said, noting the appearances were in his personal capacity. And now, conveniently, the memo agrees with him. The sequence here is worth savoring: the conduct came first, the criticism came second, and the rulebook was amended third.
Non-career appointees may not attend any partisan political events, even in their personal capacities
That is the 2024 memo, from the Biden-era Justice Department, continuing a policy instituted two years earlier — notice the “even in their personal capacities,” which existed precisely to close the loophole the new memo reopens. The 2024 guidance also told appointees to “avoid making public appearances in any state shortly before a primary or general election in that state, to the greatest extent practicable.”
About that personal-capacity doctrine: it is a legal costume change. The idea is that when the attorney general walks onstage at a party convention, being introduced — one assumes — as the attorney general of the United States, he is actually there as Todd Blanche, private citizen, who happens to have a very short commute to the Justice Department. Imagine you run a company and the CEO keynotes a trade show for your biggest competitor, but on his own time, in his personal capacity. Nobody at your company would find that reassuring, and nobody at the trade show would be confused about whose name sold the tickets.
The solicitation of the personal-capacity exception arrives at a moment when Blanche’s department has been notably alert to other people’s politics. The department recently filed a misconduct complaint against nearly all of Minnesota’s federal judges after six of them publicly criticized it — criticism Blanche called “overtly political” and evidence of bias, as we reported at the time. Overt political activity is apparently quite corrosive to the appearance of impartial justice, depending on the overt practitioner’s confirmation status.
So the department now formally maintains two tiers of employee: administrative law judges and Criminal Division prosecutors, who are too close to the machinery of justice to be trusted at a rally, and the attorney general, the FBI director and the nation’s U.S. attorneys, who may headline one. The line between law and politics has not been erased, technically. You just need 51 senators to let you cross it.