DOJ Shift on Political Activity Rules Breaks from Past Practice

The Justice Department’s removal of some restrictions on non-career appointees’ participation in political activities walks back years of policy across presidential administrations aimed at maintaining the department’s independence, former government ethics lawyers said.

DOJ updated its online political activity guidelines on Wednesday to remove mentions of restrictions implemented by Attorney General Merrick Garland during the Biden administration. The deletions included a policy that non-career appointees can’t attend partisan political events, even in their personal capacities.

The latest website changes, which followed media reports of updated ethics guidance issued by Attorney General Pam Bondi, also included the removal of language that all DOJ political appointees are included in a group subject to a more stringent set of limits under the Hatch Act.

These “further restricted” employees are generally prohibited from hosting political fundraisers, making campaign speeches, or otherwise campaigning or engaging in concert with a political party, partisan candidate or politically affiliated group.

Department leaders dating back more than 20 years have held DOJ political appointees to this higher standard to limit even the appearance of partisan influence in DOJ activities, according to former ethics advisers and a Bloomberg Law analysis of archived DOJ webpages.

The removal of this language from public view leaves it unclear how Donald Trump’s administration will enforce the Hatch Act among politically appointed senior leadership at the department, including assistant attorneys general who decide on prosecutions pursued at the civil rights, national security, and other divisions.

The possibility of more DOJ appointees participating in campaign and fundraising events risks undermining the legitimacy of the department’s independence as it already faces backlash over attempted prosecutions of Trump’s perceived political enemies, ethics attorneys said.

“Until recently we’ve gone on the assumption that the Justice Department is different, that it would be the even-handed administration of justice without regard to political party,” said Richard Painter, who served as the chief White House ethics lawyer during George W. Bush’s administration.

“That idea has been completely abandoned in this Justice Department,” Painter said. “This is just one more example.”

A DOJ spokesperson confirmed Bondi issued updated internal rules on political activity, adding the attorney general continues to expect full compliance with the Hatch Act from all political appointees.

Insulating DOJ

While Joe Biden’s administration implemented stricter limits on DOJ political appointees, there’s long been a desire to “insulate the US Department of Justice from partisan politics,” Painter said.

The Hatch Act generally prohibits executive branch employees from engaging in certain politically affiliated conduct, with employees separated as “less restricted” and “further restricted.”

Senior executive service employees, as well as administrative law judges, Criminal Division employees, and some others are “further restricted” by statute. Prior administrations, including the first Trump administration, have said these same restrictions apply to DOJ political appointees, as a matter of policy.

“There are 20-plus years of that policy being embedded into the culture of the department,” said Cynthia Shaw, a former longtime government lawyer who directed DOJ’s ethics office during Trump’s first term and much of the Biden administration.

Garland tightened this policy to limit any political event attendance after the Office of Special Counsel, which enforces the Hatch Act, launched a probe into whether former Massachusetts US Attorney Rachael Rollins violated the statute when she attended a Democratic National Committee fundraiser.

Beyond walking back Garland’s policy, Bondi’s changes allow DOJ political appointees to participate in their personal capacity in campaign events and campaign management, said Benjamin Grimes, former deputy director of DOJ’s Professional Responsibility Advisory Office, which advises attorneys on policies and professional conduct.

The changes could allow political appointees to take a “more explicit part in campaign events, and giving speeches geared toward generating support for the party, not just policy objectives,” Grimes said.

“That is simply something that most executive agencies, and the Department of Justice, in particular, would have avoided in the past, regardless of administration,” Grimes said.

Bondi’s update is similar to action taken by the Department of Homeland Security at the start of Trump’s second term. Then-acting Secretary Benjamine Huffman rescinded a policy in place since 2007 requiring DHS political appointees and other non-career employees to follow stricter limits on political involvement than those laid out in the Hatch Act.

Enforcement Questions

With midterm elections approaching, it remains to be seen how closely DOJ will enforce the Hatch Act among political appointees, including ensuring any political activities occur outside of duty hours and without the use of government resources, Grimes said.

The DOJ spokesperson said any employee who is unclear as to whether a particular action could violate the Hatch Act should seek guidance from their component’s career ethics officials.

Another open question is whether increased political appointee presence at fundraising events will lead to actual or perceived bias in DOJ prosecutions, Painter said.

“Access to these Justice Department officials is going to be obtained by people who are wealthy donors to the president’s party,” including donors “who may currently be under investigation,” Painter said.

All DOJ employees remain prohibited under the Hatch Act from directly asking for money in support of political activity, Painter said.