Bizarre Press Release About PA Military Ballot Issue Raises Eyebrows Among DOJ Alum

UNITED STATES - SEPTEMBER 6: slowdowns in the U.S. Postal Service have spurred concerns about delivery and receipt of ballots for the November elections. (Photo By Bill Clark/CQ-Roll Call, Inc via Getty Images)
September 24, 2020 4:53 p.m.

The U.S. Attorney’s office of the Middle District of Pennsylvania issued a bizarre press release Thursday announcing that it was in the midst of an inquiry into “potential issues” with military ballots cast in Luzerne County, Pennsylvania.

The fact that feds were looking into the issue — which was described by the DOJ as a “small number of military ballots” that “were discarded” — wasn’t necessarily surprising, former Justice Department officials told TPM.

But publicizing the pending inquiry while selectively releasing details of what it found so far raised the question: Why was the U.S. Attorney’s office running afoul of DOJ policy regarding the announcements of such investigations?

Gerry Hebert, a former DOJ official who for several years worked in its voting section, said in an email that Thursday’s press release was “inconsistent with DOJ handbook for prosecuting election cases, which generally discourage public statements by DOJ re: ongoing investigations.”

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A spokesperson for U.S. Attorney David Freed’s office told TPM the office had no further comment outside of the statement.

“DOJ policy provides that the government should not confirm or deny the existence of an investigation,” Barbara McQuade, a former U.S. attorney under President Obama, told TPM in an email. “There is an exception where necessary to assure the public. The question here is whether the prosecutor is seeking to assure or alarm the public.”

The weirdest detail of all was that, in its initial press release, the DOJ said it had identified only some of the voters who had cast the ballots in question, but “[a]ll nine ballots were cast for presidential candidate Donald Trump.”

Within a few hours the press release was taken down and a revised press release issued to clarify that of “the nine ballots that were discarded and then recovered, 7 were cast for presidential candidate Donald Trump.”

“Two of the discarded ballots had been resealed inside their appropriate envelopes by Luzerne elections staff prior to recovery by the FBI and the contents of those 2 ballots are unknown,” the revised press release said.

But the clarification came after a prominent Trump campaign official tweeted sensationally that “100% of” the ballots “were cast for President Trump” and that “Democrats are trying to steal the election.”

Justin Levitt, a Loyola Marymount law professor who served in Obama’s DOJ, told TPM that it was “improper to announce the fact of an inquiry” and that it was “very improper to announce partial facts.”

“And it’s grotesquely improper to announce whom the ballots were cast for, as if that mattered in the investigation,” he told TPM in an email. “(Also: was Donald Trump the only candidate identified on those ballots?  No other federal or state offices?)”

According to the press release, the U.S. Attorney and FBI began its inquiry on Monday at the request of Luzerne County District Attorney Stefanie Salavantis, who also issued a statement generally acknowledging the review. Salavantis’ statement did not go into the details of who the ballots were cast for.

The DOJ statement noted that county election officials had been cooperative in the review.

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