Departing from long-standing department policy and practice, Attorney General William Barr’s latest pronunciamento has “authorized” Justice Department prosecutors “to pursue substantial allegations of voting … irregularities” — before states certify their elections.
Stripped of the mumbo-jumbo, the memorandum allows zealous U.S. attorneys to go overt. They may, for example, immediately issue subpoenas, obtain search warrants, interview witnesses, sign off on arrests, even make news releases — all actions likely to attract media attention. And media attention is what Barr wants.
What is wrong with that? you might ask. Nothing, if Barr intends to streamline voter fraud prosecutions. But he does not, not really.
U.S. attorneys could always prosecute voter fraud miscreants. But they used to be instructed not to do anything public that might affect the election process before certification, the idea being that prosecutors ordinarily should not mess with an ongoing election process without cause. Exceptions to the policy could proceed only after consultation with the Department of Justice.
Barr knows his department hasn’t a prayer of finding sufficient fraudulent ballots to affect election results in any meaningful way. What Barr actually is about here is subtly assisting President Donald Trump’s “stab in the back” narrative of rampant voter fraud, creating smoke where there is no fire and appeasing his deranged boss by the appearance of action.
Why am I sure that there was no widespread voter fraud? For several years in the early 2000s, I was the federal election crimes prosecutor for Northern California. I worked with an FBI special agent as my investigative counterpart. We never had a credible allegation of election fraud in our district. Every election year I would be summoned to Washington to attend a national conference of election crime prosecutors.
Curiously, no one I met there had had a real voter fraud case with actionable evidence. We were the proverbial Maytag repairmen waiting for breakdowns that never happened. True, online legal search engines show a sprinkling of election crime cases over the past 40 years. But not in significant numbers.
Moreover, Trump himself appointed a voter fraud commission in 2017 to identify voter fraud in the 2016 election, an election in which he claimed that millions of fraudulent ballots had been cast for Hillary Clinton. Not surprisingly, the commission found nothing of substance.
Since the early 2000s, election security has only tightened due to Republican voter suppression efforts by overly restrictive identification requirements. Election crimes may not be as rare as unicorns, but they are not widespread either. Barr knows this. So do people in his department.
But then this is not the first time Barr has tried to cast doubt on the integrity of the election process. Echoing his master’s voice, he proclaimed earlier this year that foreign countries could easily manufacture mail-in ballots to tip an election. The fact is just the opposite. Ask any honest election administrator how difficult it would be to manufacture mail-in ballots that would get by election officials.
Additionally, in September, Barr alleged that there was a federal indictment of a Texas man who had completed 1,700 mail-in ballots. This proved to be false. No such indictment existed.
Barr’s election memorandum is only one of many shifty moves in a dishonorable tenure. His unprincipled abuses of power will be the subject of future doctoral dissertations, law review articles and one or two books. He reminds us how close a call democracy has had.
God only knows how Trump and Barr in a second term might have fiddled with American justice.
Lawrence J. Leigh
Lawrence J. Leigh is a former assistant United States attorney for the districts of Utah and Northern California.