Barr’s Gambit Opens Path to Tarring Biden Win Without Undoing It
Attorney General William Barr’s directive expediting election-fraud probes might please President Donald Trump, but it’s unlikely to produce evidence that could change the outcome, according to former federal prosecutors.
For Trump’s supporters, Barr’s effort at intervention may provide ammunition in a long-shot effort to delay Biden’s certification as president while they try to push a legal challenge up to the Supreme Court. It could also undercut public support for Biden even after he takes office Jan. 20.
The directive is particularly troubling because it could be interpreted by some federal prosecutors “to shoot first and ask questions later,” said Gregory Brower, a former U.S. Attorney for the District of Nevada.
Barr issued an unprecedented memo on Monday authorizing U.S. attorneys across the country to open inquiries into potential irregularities in the presidential election, even while acknowledging there’s no conclusive evidence.
“While serious allegations should be handled with great care, specious, speculative, fancifu
l or far-fetched claims should not be a basis for initiating federal inquiries,” Barr wrote. “Nothing here should be taken as any indication that the department has concluded that voting irregularities have impacted the outcome of any election.”
That suggested a high threshold for action because affecting the outcome of the presidential election could require overturning the vote results in enough states to make a difference.
After Barr’s memo was released, Richard Pilger, who led the Justice Department’s Election Crimes branch, resigned from that post.
In an email to colleagues, Pilger said he was stepping down because Barr’s new policy “abrogated the forty-year-old non-interference policy for ballot fraud investigations in the period prior to elections becoming certified and uncontested.”
House Judiciary Committee Chairman Jerrold Nadler, a New York Democrat, said in a statement Tuesday that Barr’s move is “unlikely to open new legal avenues for the Trump campaign but speaks to Barr’s dangerous and irresponsible impulse to pander to the president’s worst instincts.”
The question is what federal prosecutors will do in response to the directive. The Justice Department didn’t immediately provide details. The office of the U.S. Attorney for the Eastern District of Pennsylvania, which covers Philadelphia, declined to comment.
“The goal is to stir up as much ruckus as possible in battleground states, where the vote’s still being counted, by whatever means,” said William Weld of Massachusetts, a former Republican governor of Massachusetts, ex-federal prosecutor and past Trump opponent. “That’s not a noble goal,” he said.
Practically, Barr’s directive shouldn’t affect the certification of election results because federal prosecutors are bound by rules preventing them from talking about ongoing investigations, said Brower, the former U.S. Attorney in Nevada, who is also a former FBI official and now a shareholder at the law firm Brownstein Hyatt Farber Schreck LLP.
But Brower and other former officials said they can’t rule out that normal rules might not be followed by U.S. attorneys who are loyal to Trump and Republicans.
“There’s an old saying that the power to indict is the power to destroy,” Brower said. “I’ve come around to believe that the power to investigate is the power to destroy if the prosecutor is willing to leak the facts of an investigation.”
Indications of potential misconduct could be blown up by Republicans to further sow doubt about the election even if there’s no firm evidence, said Kristen Clarke, president and executive director of the National Lawyers’ Committee for Civil Rights Under Law.
“It’s hard not to see this as part of a coordinated campaign to delay the certification of election results,” said Clarke, who is also a former Justice Department official. “The memo runs the risk of causing a fishing expedition by federal prosecutors in states.”
Barr has been one of the most ardent and aggressive supporters of Trump, and his message comes as Trump and his legal team continue to make so far unsubstantiated claims of widespread voter fraud.
Barr acknowledged that in authorizing Justice Department inquiries he broke with policies that he said require consultation with the agency’s public integrity officials in some instances.
He argued that time was of the essence, as those officials generally counsel that overt investigative steps shouldn’t be taken until the election outcome has been concluded.
Bob Bauer, a top lawyer for the Biden campaign, said in a statement that “it is deeply unfortunate” that Barr “chose to issue a memorandum that will only fuel the ‘specious, speculative, fanciful or far-fetched claims’ he professes to guard against. Those are the very kind of claims that the president and his lawyers are making unsuccessfully every day, as their lawsuits are laughed out of one court after another.”
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