Attorney General William Barr’s election fraud memo brings new storm to Justice Department

Kevin Johnson

Kristine Phillips
 
| USA TODAY

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Concession speeches: A look back on history

Scott Farris, author of “Almost President: The Men Who Lost the Race but Changed the Nation,” describes the tradition of offering a concession speech.

In the weeks before the election, President Donald Trump had made no secret that he was looking for Attorney General William Barr to boost his sagging reelection bid.

At his most extreme, Trump called for Barr last month to bring criminal charges against Obama administration officials based on debunked allegations that they spied on his 2016 campaign.

“Unless Bill Barr indicts these people for crimes … then we’re gonna get little satisfaction unless I win,” Trump told Fox News in an interview.

All the while, Barr remained unusually silent – until now.

A week after Election Day, with Trump scrambling to contest the victory claimed by President-elect Joe Biden, an attorney general accustomed to controversy brought a new storm to the Justice Department.

By authorizing federal prosecutors in a two-page memorandum to pursue allegations of voting irregularities before election results have been certified, Barr bucked decades of Justice Department policy that prohibited interventions that could influence election results. And it opened the department to claims of partisan interference that could delay the traditional post-election transfer of power.

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Less than 24 hours later, Barr’s action has prompted rebukes from inside and outside his own department.

“The attorney general’s memo represents another instance of his sacrificing the reputation of the Department of Justice to serve the political interests of President Donald Trump,” Sen. Dick Durbin, D-Ill., said Tuesday.

Sen. Amy Klobuchar, D-Minn., called Barr’s directive “disheartening” and said it fed a false narrative that “something is wrong with this election.”

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The most stinging admonishment, however, came from the Justice Department’s own director of the Election Crimes Branch, who resigned his post shortly after Barr issued the directive late Monday.

With the attorney general’s memo, Richard Pilger said the department was effectively “abrogating the 40-year-old non-interference policy for ballot fraud investigations.”

“Having familiarized myself with the new policy and its ramifications … I must regretfully resign from my role as director of the Election Crimes Branch,” Pilger said in an email to colleagues.

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‘Far-fetched claims’

A Justice Department official said Trump had not directed Barr to take the action, but the timing of Barr’s memo drew nearly as much notice as its contents, with Trump’s legal team largely failing in their efforts to contest voting in Nevada, Michigan and Georgia.

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In Monday’s directive, the attorney general told federal prosecutors they could open inquiries “if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.”

Last month, the department issued separate guidance allowing prosecutors more authority to take action on voter fraud allegations even as voting was underway. Spokesman Matt Lloyd said last month that the guidance was part of communication that is “routinely” provided to federal prosecutors in an election season.   

Though Trump and his campaign have repeatedly made claims of fraud, there has been no evidence of widespread voter irregularities. In fact, election officials from both political parties have publicly stated the election went well, despite minor problems that are typical in elections, including voting machine breakdowns or ballots that were miscast and lost.

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Barr noted in the carefully worded memo that the Justice Department had not concluded that “voting irregularities” compromised the outcome of any election.

“While it is imperative that credible allegations be addressed in a timely and effective manner, it is equally imperative that department personnel exercise appropriate caution and maintain the Department’s absolute commitment to fairness, neutrality and non-partisanship,” Barr wrote, adding that “specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries.”

Still, Barr’s action gives federal prosecutors ample latitude to intervene before Dec. 8, the deadline for states to resolve election disputes. Members of the Electoral College, meanwhile, meet Dec. 14 to finalize the outcome.

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Biden holds substantial leads in five battleground states, and election law experts have said it’s unlikely that any legal action the Trump campaign pursues would affect the outcome. The closest state, Georgia, which will hold a recount, has Biden ahead by 12,651 votes as of Tuesday afternoon. 

Biden’s legal team has dismissed Barr’s move, suggesting it would serve only to produce the same “specious” claims that the attorney general cautioned against.

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On Tuesday afternoon, Biden also said there was “no evidence” to support any of Trump’s fraud claims.

Matthew Miller, who was a spokesman for Attorney General Eric Holder in the Obama administration, tweeted Monday: “I don’t think Barr can do anything to change the outcome of the election, but I’m surprised by how many people think this memo was just to satisfy Trump. Hope I’m wrong, but I assume there is some flashy investigation coming as well.”

Vanita Gupta, acting chief of the department’s Civil Rights Division in the Obama administration, said Barr’s memo had “no factual basis,” adding that states, not the federal government, are in charge of elections.

She said Pilger’s resignation, prompted by Barr’s memo, underscored “how grossly politicized and partisan the Barr DOJ is, in service of Trump.”

“It is a total travesty,” Gupta tweeted.

Protect Democracy, a nonpartisan group that monitors allegations of election manipulation, said the department’s own manual for prosecuting voting fraud “makes clear that … investigating and prosecuting election fraud takes a back seat to ensuring that states have the ability to count votes and certify election results free from federal interference.”

“It is not uncommon for DOJ to investigate alleged election crimes, including potential fraud,” the group concluded in it analysis of Barr’s memo. “But it would be unusual for DOJ to investigate in a way that interferes with the completion of the election.”

‘It’s that offensive’

It is not the first time that the attorney general’s action has triggered protest within his own department.

Earlier this year, Justice lawyers withdrew from the prosecutions of longtime Trump adviser Roger Stone and former national security adviser Michael Flynn after Barr’s intervention in those cases.

Pilger’s decision to step down from his post after Barr’s memo is only the latest such demonstration.

“This is definitely one of those cases worth resigning over,” said Bruce Udolf, a former federal prosecutor who was an associate independent counsel in the Clinton Whitewater investigation.

“I don’t really expect anything to come of it or anybody to be indicted in the next two months, but it’s definitely worth making a statement. It’s that offensive.”

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