Barr Heads Into the Fray
On Monday, Attorney General William J. Barr distributed a memo to federal prosecutors within the Department of Justice, granting them the ability to inquire into Trump’s manufactured election controversy and to pursue “substantial allegations” of voting irregularities. Barr’s two pages of instructions, obtained by The Associated Press, essentially detail how he will be using the Justice Department (DOJ) to help him in the quest to find a single allegation that favors Trump, to be used against Biden, to help shift the outcome of the election result.
In the directive, Barr explains that an investigation “may be conducted 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.” He also fails to specify in the memo what type of circumstance might qualify for what constitutes fraud. Barr does provide a disclaimer that any new allegations that “would clearly not impact the outcome of a federal election” and should be delayed until after state elections, but this does little to counteract the damage of going against well-established Justice Department policy.
There is no evidence of fraud at this point. Barr is pushing to have his team launch investigations in a direction that has expressly been forbidden by the manual that guides Federal Prosecutions of Election Offenses. The guidance states, “Because the federal prosecutor’s function in the area of election fraud is not primarily preventative, any criminal investigation by the Department must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election.”
The manual goes on to explain that violating this boundary could impact the current election cases in court, and attempting to seize any necessary documents needed to establish a case could deprive the state of critical materials necessary to resolve disputes or certify the election.
According to the federal manual, “It is the general policy of the Department not to conduct overt investigations, including interviews with individual voters, until after the outcome of the election allegedly affected by the fraud is certified.” By authorizing federal prosecutors to barrel toward the center of the confusion, Barr has crossed yet another legal and ethical line, and it is one more indication of the Trump campaign’s flourishing desperation to be named the winner at any cost.
Barr states in his memo that investigations “may be conducted 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.”
Instead of conceding the election in the spirit of tradition, Trump has taken his claims to several courts, and while this move is questionable and highly unadvisable, it certainly is his right to do so. But, now Trump has added another component to his quest to maintain power — he is using Barr to deploy challenge prosecutors to maneuver around longstanding and prohibitive Justice Department policy, before the election can be certified.
US Code (3 U.S.C. §5) provides that if election results are contested in any state, and if the state has enacted procedures to settle controversies or contests over electors and electoral votes prior to election day, and applied those procedures, then the results determined six days before the Electoral College meets are considered to be conclusive. This law, also known as the “Safe Harbor” deadline, specifies that states have until this predetermined date (December 8, 2020) to resolve election disputes, including recounts and court contests over the results.
Pursuant to US Code (3 U.S.C. §7), the Electoral College is to meet on the Monday after the second Wednesday in December of presidential election years, which is December 14, 2020. This is the process by which electoral members are expected, but not constitutionally bound, to vote for the candidates they represent and when that process concludes, the entity ceases to exist until the next presidential election. (You can expect further analysis of this process and what issues we might run into in future posts.)
William Barr was spotted in Senate Majority Leader Mitch McConnell’s office on Capitol Hill on Monday afternoon, and he refused to answer any questions from reporters as he exited. This is noteworthy considering that McConnell had thrown his support behind Trump earlier in the day, by taking to the Senate floor after an unusual period of post-election silence, to ultimately disparage the win by Democrats.
"Obviously, no states have yet certified their election results — we have at least one or two states that are already on track for a recount and I believe the president may have legal challenges underway in at least five states," said Mitch McConnell declining to acknowledge Biden's victory. McConnell then went on to emphasize that Trump is “100% within his rights” to weigh his legal campaign options, rather than following the protocols of tradition and facilitating the peaceful transfer of power.
Although no one at the Department of Justice has confirmed that Trump specifically instructed Barr to issue his Monday directive, the memo distributed corresponds directly to claims Republicans have been dispatching since it became apparent that Biden would be declared the winner. There has yet to be any evidence behind any allegations of voter fraud. The fact that Barr met with McConnell, and distributed this memo around the same time that McConnell was espousing his views on Trump’s right to hold out in the courts, only seeks to emphasize that Trump is deploying a coordinated strategy.
The public displays from the majority leader and Trump’s attorney general run parallel to the haphazard plan put into motion by Trump’s campaign once the election was called for Biden. The Trump Campaign used social media and Trump’s own podium to push the theory that there was “voter suppression, irregularities and fraud” that favored Biden. They set up a hotline to report such abuse, hoping to get some leads that might assist Trump with his litigation efforts, but so far, hotline workers have mostly been fielding prank calls, and calls from Biden supporters trying to report the illegal activities of the Trump Campaign.
This latest move by Barr to hop back on the Trump train and facilitate his witch hunt for more elusive evidence of fraud, is not sitting well with some lawyers at the Justice Department, ether. Richard Pilger, a prosecutor in the department’s Public Integrity Section, who oversaw voter fraud investigations, made the decision to step down after Barr sent the new memo out.
“Having familiarized myself with the new policy and its ramifications,” Pilger said, “I must regretfully resign from my role as Director of the Election Crimes Branch.” While the Barr memo is not likely to change the outcome of any meaningful aspects of the election, Barr’s destructive orders, put into place to secure Trump’s power, continue to impact public support for the DOJ as well as those who have dedicated themselves to protecting the very institution they are being instructed to tear down.
Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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Thank you for this article. It is so well written and precise regarding the laws and policies governing our elections. I look up to and respect your writing and reporting ethic . 🙏🏻
It's also making the high-priced, elite law firms filing the suits embarrassed and uncomfortable. The goal of all this is to delay the final results long enough to miss the deadline, IMO. Then things get messier, if that's possible. All of us who knew despair on November 9, 2016, didn't know the depths of that despair at the time but, for me, I'm glad I didn't. There is no final depth; Trump is boring deeper hour by hour, day by day, until this nation's government is immobilized and Biden must spend valuable COVID-battling time shoring it up.