Russell Hebets Nov. 10, 2020

On Saturday, November 7th, 2020, the election to name America’s 46th president was called.  According to the AP and multiple media outlets, Joe Biden was the winner, having exceeded the required 270 electoral college votes to claim the presidency.  Donald Trump, however, has thus far refused to concede.  He has alleged voter fraud, filed multiple lawsuits in multiple states, and has claimed victory for himself.  On November 9th, 2020, Attorney General William Barr, a Trump appointee, sent a memo to US Attorneys, various assistant Attorneys General, and the Director of the FBI.  This memo reversed the longstanding Department of Justice policy of not investigating voting irregularities prior to certification of the vote.   This conflict has set the stage for a protracted battle and has left people wondering who will actually be in the white house on January 20th, 2021.

Mr. Barr’s Role Prior to the Election

The Department of Justice has had a lengthy and well-developed policy on election fraud.  This policy is detailed in the approximately 200 page Federal Prosecutions of Election Offenses handbook. According to this Department of Justice policy, pre-election inquiries into election fraud were largely prohibited due to the possibility of “chilling legitimate voting and campaign activities” or “injecting the investigation itself as an issue” in the election.  Some covert investigations were allowed during the campaigns, but these investigations traditionally required explicit permission from a career prosecutor within the Election Crimes Branch of the Department of Justice.  

William Barr, as head of the Department of Justice, either explicitly or implicitly overturned this policy weeks prior to the election.  In a memo from a Justice Department lawyer to prosecutors, the department granted permission to investigate suspicion of election fraud before votes were tabulated. This at least allowed federal law enforcement activities related to the election to proceed prior to November 3rd.  No high-profile investigations emerged prior to the election alleging substantial voter fraud.

Mr. Barr’s Role Post-Election

For one of President Trump’s most ardent supporters, Mr. Barr had been uncharacteristically quiet following the election.  He broke his public silence when he released his November 9th memo.   This memo expanded his previous change in policy allowing pre-election investigations into potential voter fraud.  Traditionally the Department of Justice policy did not allow overt investigations at any point prior to the certification of the election results.  Barr’s November 9th memo overturns this prior policy, and specifically encourages law enforcement to move forward with investigations post-election but prior to the election certification.  His new order directs prosecutors to “pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections”.  He further limits these investigations to cases in which there are “clear and apparently credible allegations” which “could potentially impact the outcome” in a given state.

This memo precipitated Richard Pilger’s resignation from his role as the Director of the Elections Crime branch in the Department of Justice Public Integrity Section.  Mr. Pilger is a career prosecutor, and was an editor of the aforementioned Federal Prosecutions of Election Offenses handbook which detailed why public federal investigations into pending elections should be avoided.  Mr. Pilger, as with many other political observers, see Barr’s memo as nothing more than a political maneuver intended to give Donald Trump and his republican allies cover for their continued denial of the election results.  His resignation was in direct response to the political nature of Barr’s memo.

What Impact Will Barr’s Directives Have on the Election?

Despite the panic from some Trump detractors on the left, this directive is very carefully worded.  While there no consensus on the actual political motive behind the release of this memo, the legal ramifications are far less ambiguous.  The memo limits action to substantial allegations of voting fraud.  This means that the single poll worker in Arizona who recorded a single Trump ballot as a Biden ballot is not going to be the target of a federal investigation.  Mr. Barr also limited it to credible allegations.  This is in line with what US Attorneys do every day.  They aren’t going to try to track down an unsubstantiated lead from the local conspiracy theorist wearing the tinfoil hat.  Lastly, he limited the investigations to situation that could affect the outcome in a given state.  This means that if Biden is up by say 45,000 votes in Pennsylvania, an allegation that there was a counting error of 5,000 votes will not be pursued, as it would not affect the outcome in the state.

It is difficult to envision a true purpose for this directive other than as political cover for President Trump.  The only circumstance in which William Barr’s policy change would affect the 2020 presidential election is if there were, in fact, substantial instances of actual voter fraud that swayed the election results in multiple states.  Election fraud in general is something that the US Attorney’s office has been tasked with investigating for decades, independent of Mr. Barr’s memo.  As Richard Pilger put it in his resignation letter, “I have enjoyed very much working with you for over a decade to aggressively and diligently enforce federal criminal election law, policy, and practice without partisan fear or favor.”  This injection of partisan fear or favor through Mr. Barr’s memo forced his resignation.

 The US Attorneys who are responsible for implementing Mr. Barr’s policy change are overwhelmingly lifelong prosecutors and civil servants.  There are only 93 politically appointed US attorneys in US jurisdictions.  These political appointees are a tiny fraction of the thousands of Assistant US Attorneys who are responsible for carrying out America’s prosecution duties at the federal level.  These are women and men who have served in both republican and democratic administrations, and whose duty is to the law, not to any specific political ideology.   The same is true for the thousands of FBI agents whose duty it would be to investigate voting fraud allegations.  It breaks the bonds of credulity to think that there would be a mass conspiracy by these civil servants to undermine the results of an otherwise fair and free election.