Over the past week, the public has learned of three efforts by the Department of Justice to charge perceived enemies of President Donald Trump with federal crimes. One of those efforts, an attempt to indict former White House aide turned Jan. 6 committee star witness Cassidy Hutchinson, failed on Tuesday after a Washington, D.C., grand jury did not have the votes to return what’s known as a “true bill.”

The other two have resulted in the opening of criminal cases: one against former FBI Director James Comey, the third such effort against him in just over a year, and the other against two former FBI employees alleged to have lied to a congressional committee about what they knew about Hunter Biden’s laptop.

And with the midterm elections literally days away, despite this seeming escalation in prosecutions, the Justice Department has maintained that political considerations had nothing to do with the timing or existence of these criminal matters.

As a DOJ spokesperson told The New York Times, “The standard is purpose, not proximity to Election Day. Department policy does not require the department to stop ongoing work during an election season.”

Yet even assuming that Justice Department prosecutors are acting in good faith, that description of DOJ policy is incomplete.

A memo issued in 2024 by then-Attorney General Merrick Garland mandated that prosecutors not time “criminal charges or any other action in any matter or case for the purpose of affecting any election.” The memo went on to say, “Such a purpose, or the appearance of such a purpose, is inconsistent with the Department’s mission and with the Principles of Federal Prosecution” (emphasis added).

The Justice Department did not immediately respond to MS NOW’s request to confirm whether the memo was still in effect. MS NOW is unaware of any evidence that it has been rescinded.

Moreover, the Justice Manual — sometimes called the bible of federal prosecution by current and former DOJ personnel — provides that any issue or even “the perception of an issue” concerning an investigative or prosecutorial action during an election season demands consultation with the Public Integrity Section, the deputy attorney general and/or the attorney general themselves. In other words, Trump political appointees, up to and including Attorney General Todd Blanche, are the final arbiters of whether a prosecutor’s purpose is legitimate.

Given that, some or all of them must have signed off on these recent prosecutorial developments. But the mistakes made by DOJ lawyers in each of these cases suggest both a rush to the courthouse and a desire to stretch the law, criminal procedural rules or both in ways that might fail or have already faltered.

Take the most recent criminal charges against Comey, unsealed earlier this week. Those charges center on the purported disclosure of allegedly classified information by an FBI employee to a New York Times reporter who published an article hours later. According to the DOJ, Comey intentionally caused that disclosure on Oct. 5, 2016, knowing the information was classified.

But the case against Comey, filed 10 years later to the date, was not initiated through an indictment, which requires a vote of at least 12 grand jurors in a federal court. The Justice Department charged Comey via an information, which does not require grand jury involvement and therefore typically can be filed much more quickly than an indictment.

Because the statute of limitations for each of the charges against Comey is 10 years, the DOJ seems to have assumed it could charge Comey by information within that window and then later obtain an indictment, which (barring a defendant’s waiver) is necessary to prosecute felonies.

But now the department is instead defending Comey’s near-immediate motion to dismiss. And his legal team’s argument has nothing to do with the substance of the charges or claims of selective or vindictive prosecution, which it supported with extensive documentation in the two prior cases against Comey.

Instead, Comey’s attorneys argue that the plain language of the statute of limitations pertains only to indictments, not informations or criminal complaints, the third way federal criminal cases can begin. A Washington, D.C., federal judge will hold a hearing on that motion Friday.

The case against former FBI analyst Nikki Floris and former agent Bradley Benavides seems to show signs of a similar rush to the courthouse. That case was instigated on Oct. 20 through a criminal complaint, which typically contains a written statement of “the essential facts” of the offense charged, usually submitted by a federal law enforcement agent under oath and then approved and signed by a federal magistrate judge.

But within days — and literally in the middle of the night before a preliminary hearing — the Justice Department filed what it characterized as a “superseding” criminal complaint. The new complaint lacked a signature from either the agent, swearing to its veracity, or the judge himself. It also was filed under the name of a different FBI agent, without any explanation.

The magistrate judge, Zia Faruqui, was furious, asking the DOJ lawyer whether he was aware of any prior federal case in which a magistrate judge had allowed a superseding criminal complaint without a judge’s sign-off. The lawyer acknowledged that he was not — and ultimately, the judge refused to sign the new complaint, telling the prosecutors, “I am concerned about what your view of the law is.”

The hearing was further derailed when Bryan Witt, the agent who replaced the original affiant, took the witness stand to defend the government’s finding of probable cause to charge Floris and Benavides.

On questioning by Floris’ lawyer, Witt testified that the day after Trump complained during a national address that some FBI intelligence officials had downplayed a report that China had tried to interfere in the 2020 election in order to defeat him, FBI Director Kash Patel directed the U.S. attorney’s office in Kansas City, Missouri, to investigate some of those same officials, including Floris. Witt further testified that the letter arrived “right in the middle of a major public corruption case,” that the new investigation was “a huge distraction” and that he had concerns from the outset that “this would be viewed as political.”

He also admitted that he never interviewed Floris, though he said it would have been “incredibly useful” and normally would have been something agents did, and that the initial complaint contained factual inaccuracies. As of Wednesday afternoon, Faruqui was still weighing whether prosecutors had probable cause to charge Floris and Benavides.

In light of the challenges the DOJ has encountered in that case, one may wonder if it would have been more effective to slow down and present an indictment to a grand jury. Yet the department’s failed attempt to secure an indictment against Hutchinson — its third potential own goal in recent days in D.C. federal court — might explain why it didn’t.

Because grand jury proceedings are secret, it is unclear why the grand jury did not indict Hutchinson. But according to public reporting, including from MS NOW, lawyers from the DOJ’s Civil Rights Division proposed charging her with false statements to Congress, crimes not usually within that unit’s ambit.

The Justice Department’s inability to indict her comes after an unusual number of similar losses in other cases in Washington that have involved known targets of Trump’s ire, including an attempt to indict six members of Congress who, through a video, encouraged military service members to refuse to follow unlawful orders.

And with days to go before the midterm elections and with a president who is openly taking credit for the DOJ’s litigation strategy, it could be that no matter what charging instrument the department chooses, it is working too fast — and with too conspicuous a veneer of partisanship — to succeed.

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A federal judge has denied the Trump administration’s request for an emergency order that would have forced California to set aside mail ballots from more than 20,000 registered voters whom the Department of Homeland Security has identified as “likely” noncitizens.

In a 26-page opinion, U.S. District Judge David Carter, based in Santa Ana, California, noted that the relief the Department of Justice was seeking was unprecedented in both substance and timing.

“Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch,” Carter wrote.

“In bringing this lawsuit, the Executive would have this Court believe that it reigns as a sole sovereign. But California and its people are sovereign, too,” he continued.

The Justice Department filed a notice of appeal late Wednesday night. Bill Essayli, the top DOJ official in Los Angeles, said at a news conference Tuesday that he expected the case to reach the Supreme Court.

“Every day, more ballots are processed by election officials,” Essayli said in a statement Wednesday night. “This ongoing emergency disenfranchises American citizens through dilution.”

In rejecting the Justice Department’s motion for a temporary restraining order, Carter also rejected the argument that California and Los Angeles County were impeding the federal government’s enforcement of a statute criminalizing noncitizen voting by refusing to use DHS’ database to verify the citizenship of the flagged voters.

Carter noted that the Justice Department announced the prosecution of 28 alleged noncitizens residing in California for election-related crimes on the same day it sought the emergency order.

That demonstrated, Carter reasoned, that the Justice Department had the ability — as well as the power — to enforce federal law. California and the county, he ruled, were not interfering with that ability “by administering an ongoing election in accordance with established State and Federal law, rather than assuming new obligations pursuant to a federal criminal law they are not responsible for enforcing.”

The Justice Department’s lawsuit, filed on Oct. 15, came just days after the federal government first asked California and Los Angeles County to review its list and set aside ballots from people whose citizenship could not be confirmed. The DOJ also sent letters to both the state and the county warning that they could face prosecution if election officials allowed noncitizens to vote.

In his ruling, Carter directed that such threats end immediately.

The opinion also detailed Carter’s concerns about the reliability of DHS’ database, which an agency official admitted in a sworn declaration was “enhanced” with commercial data sources.

The judge’s overriding concern, however, was preventing chaos and protecting public confidence in the democratic process.

“The Executive’s requested relief, however, would wreak havoc and disrupt the election that is already underway, create a chilling effect on election workers and voters alike, and discount the votes of United States citizens,” Carter wrote.

“Eroded trust in our democracy is irreparable,” he contined. “Once a vote is segregated, lasting harm has occurred. If the Executive can discount votes and threaten an ongoing election due to unproven allegations, then our democracy is in danger.”

He concluded, “This Court declines to be a party to such process.”

California Attorney General Rob Bonta called Wednesday’s ruling a “victory,” but warned that the state’s fight continues.

“No administration can disenfranchise thousands of individuals or disrupt an ongoing election based on highly unreliable claims of noncitizenship,” Bonta said in a statement. “Today’s ruling is yet another important victory for the rule of law and the right to vote. But this fight is not over. We will keep fighting to protect California’s elections from unlawful federal interference and get this baseless lawsuit dismissed.”

CORRECTION (Oct. 29, 2026, 9:31 a.m. ET): A previous version of this article misspelled the name of California’s attorney general. He is Rob Bonta, not Banta.

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