Is William Barr attempting to change the results of the election? Or is the Attorney General putting limits on the Department of Justice in an attempt to walk a tightwire for the next few weeks? Under tons of public pressure from Donald Trump, Barr finally ordered the DoJ to start investigating reports of election fraud even before states have certified their results.
But only some reports, and only under specific conditions, as the Associated Press reported last night:
In a memo to U.S. attorneys, obtained by The Associated Press, Barr wrote 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.”
He said any allegations that would “clearly not impact the outcome of a federal election” should be delayed until after those elections are certified and prosecutors should likely open so-called preliminary inquiries, which would allow investigators and prosecutors to see if there is evidence that would allow them to take further investigative measures.
Barr does not identify any specific instances of purported fraud in the memo.
“While it is imperative that credible allegations be addressed in a timely and effective manner, it is equally imperative that Department personnel exercise appropriate caution and maintain the Department’s absolute commitment to fairness, neutrality and non-partisanship,” Barr wrote.
This does deviate from DoJ policy in a couple of ways that might end up benefiting Trump, or at least his PR campaign. In general, the DoJ does not announce its investigations, although in this case they aren’t announcing a specific investigation. Also, they usually refrain from conducting any voter-fraud probes until after states certify their results so as not to interfere with that process. Both of those deviations are enough to raise some eyebrows; the DoJ’s top prosecutor for election fraud resigned that post in protest, although Richard Pilger is staying within the DoJ in a more general capacity.
The normal policies reflect the usual scope of voter fraud, which usually doesn’t rise to a level where it impacts the overall result of an election. On rare occasions, though, it does. The ballot-harvesting fraud in a North Carolina congressional race two years ago forced a do-over and resulted in prosecution. However, the state and Congress dealt with that issue themselves, with investigations into the fraud and refusing to seat the apparent Republican winner. Both parties agreed to the do-over (eventually), which Republicans won anyway. The DoJ didn’t need to get involved in the Leslie McCrae Dowless case, as North Carolina prosecuted Dowless instead.
Presidential elections may seem like another matter, but they’re not — at least legally. As Republicans are fond of pointing out, presidential elections take place in separate state elections. There are federal laws governing some of that process, but the mechanics of voting are almost entirely handled by state law. That’s why we saw such disparate handling of mail-in ballots by different states, and wide variance in their adoption. To have true jurisdiction in voter-fraud cases, the DoJ will likely have to establish some kind of interstate action in support of the fraud.
So this seems like a reach anyway, but this move appears more to be a box-checking exercise anyway. In this case, Barr may have concerns that larger-scale fraud occurred, but he’s pointedly limiting early DoJ action to only those allegations, and only those which are “credible”. Anything less than the kind of scale that could have swung tens of thousands of votes in states like Pennsylvania, Arizona, and Georgia won’t get addressed until after states certify their results.
That seems like a good distinction to make; if voter fraud on that scale did occur, states should know about it before they certify their results. And if it didn’t, the DoJ shouldn’t be an obstacle to that process based on the usual type of small-scale allegations that won’t change the results. And it would be so singular that one could conclude that Barr’s basically betting that no such credible allegation will emerge at all, making this more of a PR move to placate Trump and his supporters.