Attorney General Bill Barr is playing with prosecutorial fire in his bid to give President Trump solace that someone, somewhere is doing something about his defeat in last week’s election, former Justice Department officials told TPM.
Barr’s decision to authorize prosecutors to investigate so-called electoral irregularities takes what experts described as a longstanding DOJ policy — that election-related probes not begin until the results are certified — and throws it away in favor of giving President Trump and the public the impression that something went awry last week, and must be investigated.
“The basic mantra of DOJ for decades has been, ‘don’t become the story,'” Justin Levitt, a professor at Loyola Law School and a former DOJ civil rights official, told TPM. “This is just PR — but that’s not the DOJ’s job.”
Barr reportedly began to circulate a memo last week which allowed U.S. Attorneys Offices to bypass the DOJ’s public integrity section in conducting electoral probes before the results are counted and certified.
He said in the memo that some investigations had already been authorized into so-called electoral irregularities, and gave broad leeway to federal prosecutors to probe accusations of electoral wrongdoing before the results are certified.
Barr dismissed the previous policy in the memo as not having been “a hard and fast rule.”
“Given this, and given that voting in our current elections has now concluded, I authorize you to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions in certain cases, as I have already done in specific instances,” Barr wrote.
The policy has already sparked at least one resignation from Richard Pilger, the head of the criminal division’s election crimes branch, who told colleagues in an email that the policy “abrogat[es] the forty-year-old Non-Interference Policy for ballot fraud investigations in the period prior to elections becoming certified and uncontested.”
Gerry Hebert, a senior director at the Campaign Legal Center and a former DOJ official, told TPM that the move is unprecedented, and seems to be “the DOJ and Barr trying to make the President feel good about how they’re conducting investigations.”
But in doing that, the Justice Department is throwing away a policy aimed at keeping law enforcement and political decisions very far away from elections, and which contributes to the shared sense of reality that allows for the peaceful transfer of power.
“It’s grounded in the concept that any DOJ investigation into election crimes should not become a factor in the election,” Hebert said.
And though voting itself has ended, Hebert added, the critical period following the election when counting is still occurring and the results aren’t yet certified puts the perception of the integrity of the election in a vulnerable spot.
“The announcement itself interferes with that process,” Hebert said.
NBC reported this morning that the Justice Department, under the new policy, is examining allegations of voter fraud in Nevada and Pennsylvania. The allegations focus on two swing states whose loss cost Trump the presidency, and appear to stem from allegations that the Trump campaign has filed lawsuits in both states.
Those cases are extremely unlikely to succeed in overturning the results in any state; as is the new DOJ policy, both Hebert and Levitt said.
Hebert added that the furthest the policy would likely go in practical terms would be to potentially delay certification, if poll workers found themselves responding to subpoenas or sitting for depositions instead of completing recounts or conducting audits.
“There are only so many hours in the day,” Hebert noted.
The policy also threatens to erode another longstanding DOJ policy: not announcing investigations until prosecutors have developed facts on which they are sure enough to file charges.
“It used to be that you believed that what the DOJ said was real,” Levitt noted.
He added that allegations of fraud in this past election are so debunked and unsubstantiated that, though “it’s hard not to take this seriously, that’s giving oxygen to the allegations.”
“It’s like Four Seasons Total Landscaping — people should take it that seriously,” he added, saying that while the policy change would create a hubbub around potential new investigations, “there’s no path from here to there.”
“People aren’t used to ignoring the DOJ,” he added.