New DoJ Manual Adopts Administration’s Voter Fraud Focus

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Not to worry, America. The continued menace of voter fraud will remain a focus of your Justice Department.

It went overlooked amid the other problems with Alberto Gonzales’ testimony before the Senate Judiciary Committee on Tuesday, but Sen. Dianne Feinstein (D-CA) questioned the attorney general about changes recently made to the Justice Department’s election crimes manual. The new version (pdf), which replaced the 1995 manual, lowers the bar in terms of voter fraud prosecutions — no longer cautioning against pursuing isolated, individual cases of fraud and softening language that had all but prohibited pursuing such cases before an election. “Two and possibly three of the fired U.S. attorneys were fired because they didn’t bring those small cases that might affect an election,” she observed. “Something’s rotten in Denmark.”

Feinstein, was referring, of course, to former U.S. attorneys David Iglesias of New Mexico and John McKay of Seattle — both of whom investigated alleged Democratic instances of voter fraud and chose not to prosecute. Todd Graves of Kansas City, who was replaced by Bradley Schlozman, would be the possible third addition.

You can watch the clip below (a transcript is appended). Gonzales, characteristically, didn’t know anything about the change.

There are a couple things to be said about this.

First, the new manual does indeed omit crucial language from the 1995 manual, which said:

“The Justice Department generally does not favor prosecution of isolated fraudulent voting transactions. This is based in part on constitutional issues that arise when federal jurisdiction is asserted in matters having only a minimal impact on the integrity of the voting process.”

But this is not a new development. The Justice Department under John Ashcroft began pursuing individual cases of fraud in 2002 on the theory that that such cases would deter more fraud. Five years later, there’s no evidence that’s the case — instead, as The New York Times documented in the landmark piece on the subject, prosecutors have pursued cases of ex-convicts voting, people on probation voting, etc. The prior policy meant that cases were “only brought against conspiracies to corrupt the process,” Craig Donsanto, the chief of the Department’s Election Crimes Branch, told (pdf) the Election Assistance Commission. “For deterrence purposes,” Donsanto said, “the Attorney General decided [in 2002] to add the pursuit of individuals who vote when not eligible to vote (noncitizens, felons) or who vote more than once.” As the Times showed, such an aggressive policy has failed to uncover corruption of the election process, but has triumphed in prosecuting several individuals who seem to have been simply confused about whether they could vote or not. Despite such dubious results, the Justice Department has enshrined the policy in its new manual.

The new manual has also removed language from the 1995 version about investigating voter fraud shortly before the election. The past version was crystal clear, saying that the Department “must refrain from any conduct which has the possibility of affecting the election itself,” that investigators should be “extremely careful” about it, and that “most, if not all, investigation of an alleged election crime must await the end of the election to which the allegation relates.” The new version does not supplant that policy, but certainly softens it. It reads:

Election fraud cases often depend on the testimony of individual voters whose votes were co-opted in one way or another. But in most cases voters should not be interviewed, or other voter-related investigation done, until after the election is over. Such overt investigative steps may chill legitimate voting activities. They are also likely to be perceived by voters and candidates as an intrusion into the election. Indeed, the fact of a federal criminal investigation may itself become an issue in the election.

Readers will remember that this precise passage from the 1995 manual proved a giant headache for former U.S. attorney Bradley Schlozman, who brought four indictments against voter registration workers for ACORN just before the 2006 election. The indictments, of course, were widely reported. The new, less forcefully worded, manual wouldn’t have caused him so much trouble.

Here’s the transcript from the hearing:

FEINSTEIN: All right. Let me go to something else. You, of course, recognize these books, “The Federal Prosecution of Election Offenses.” In prior hearings, we had the 1995 edition.

FEINSTEIN: Since May of this year, there is now a new edition. I’d like to read to you what has been dropped from the earlier edition.

The first thing that’s been removed is this: “The Justice Department generally does not favor prosecution of isolated fraudulent voting transactions. This is based in part on constitutional issues that arise when federal jurisdiction is asserted in matters having only a minimal impact on the integrity of the voting process.” This was removed in this new edition.

The second thing: “The Justice Department must refrain from any conduct which has the possibility of affecting the election itself.” This is weakened on page 92. This language is removed. “Federal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period of while the election is under way.” Removed.

Then a sentence that’s underlined in the ’95 edition, which states thus: “Most, if not all, investigations of an alleged election crime must await the end of the election to which the allegation relates.” It was removed in this new edition.

Weakened was this language: “It should also be kept in mind that any investigation undertaken during the final stages of a political contest may cause the investigation itself to become a campaign issue.”

Why was it necessary to remove this language in this new edition in the Federal Prosecution of Election Offenses rules?

GONZALES: Senator, I don’t — sitting here today, I don’t know the answer to that question. I would like to find out, because I am certainly committed to ensuring that we’re smart in the way that we do investigations and prosecutions and we do in a way that doesn’t intimidate voters, that doesn’t chill potential voters from coming out and voting on Election Day.
So I would like the opportunity to look into this and respond back to you.

FEINSTEIN: Appreciate it. It becomes more relevant because two and possibly three of the fired U.S. attorneys were fired because they didn’t bring those small cases that might affect an election.

And therefore, when one looks at this book now, sees a new book coming out in May ’07 that deletes the very things that these U.S. attorneys were told to follow, something’s rotten in Denmark.

GONZALES: Thank you for the opportunity for me to look into that.

FEINSTEIN: I appreciate that.

Thank you very much. My time is up.

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