Bill Barr is determined to break the Justice Department on his way out the door.

Last night the New York Times reported that Attorney General Bill Barr dropped a memo inviting individual US attorneys "to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions in certain cases, as I have already done in specific instances."

Is this a simple sacrifice of the last shred of the DOJ's credibility by putting out a meaningless internal memo cum press release lending credence to the president's patently false claims of widespread electoral fraud? Or is it an invitation to swing state US attorneys to launch 1,000 bullshit investigations as a prelude to overturning the results of the election?


Unclear! What is clear, however, is that Barr's move abrogates longstanding DOJ policy not to interfere in local elections, and certainly not before the count has been certified. As Just Security's Ryan Goodman points out, the Justice Department's 2017 manual on Federal Prosecution of Election Offenses specifically states, "The Department does not have a role in determining which candidate won a particular election, or whether another election should be held because of the impact of the alleged fraud on the election. In most instances, these issues are for the candidates to litigate in the courts or to advocate before their legislative bodies or election boards."

The federal government may prosecute electoral crimes after the fact, but it plays no role in determining the victor of a local election, much less one that is ongoing as votes continue to be tabulated. Indeed Department policy prohibits taking any investigative steps that might affect the outcome of a race or an ongoing dispute about the validity of an election.

Starting a public criminal investigation of alleged election fraud before the election to which the allegations pertain has been concluded runs the obvious risk of chilling legitimate voting and campaign activities. It also runs the significant risk of interjecting the investigation itself as an issue, both in the campaign and in the adjudication of any ensuing election contest.

Which is why the author of the manual, Richard Pilger, head of the Justice Department's Election Crimes Branch, immediately resigned his position when Barr's memo dropped.

"Having familiarized myself with the new policy and its ramifications . . . I must regretfully resign from my role as Director of the Election Crimes Branch," he emailed his colleagues. While Pilger remains at the DOJ, he'll no longer head up the division that investigates election issues. Consider the fire alarm well and truly pulled.

The Times reports that Barr "privately told department officials in the days since the election that any disputes should be resolved in court by the campaigns themselves" and "said that he did not see massive fraud, and that most of the allegations of voter fraud were related to individual instances that did not point to a larger systemic problem." Nevertheless, he's still been champing at the bit to do something to prop up Trump's bullshit claims of a stolen election.

The Washington Post's sources say that "Barr had first broached a similar idea some weeks ago and that political leadership in the Justice Department's Criminal Division, of which the Election Crimes Branch is a part, pushed back." But the AG never circled back to his staff to tell them he was going to cut the legs out from under them, leaving the Criminal Division "blindsided" by last night's memo. Hence, Pilger's abrupt resignation.

Ever the slime mold, Barr, who has spent the last six months fearmongering about supposed fraudulent ballots, justifies the deviation from DOJ policy as part of the agency's "obligation to ensure that federal elections are conducted in such a way that the American people can have full confidence in their electoral process and their government."

The non-intervention policy "has never been a hard and fast rule" Barr writes in his memo, and "passive and delayed enforcement approach can result in situations in which election misconduct cannot realistically be rectified." Which conveniently ignores the fact that the policy was designed to allow participants to duke it out in court themselves without the federal government putting its fat thumb on the scale in favor of one candidate over the other.

And while Barr cautions that "investigation of claims of irregularities that, if true, would clearly not impact the outcome of a federal election in an individual State should normally be deferred until after the election certification process is completed," let's remember that the US Attorney's Office of the Middle District of Pennsylvania already tripped over its own dick in its haste to announce an investigation of possible ballot fraud in Luzerne County. In the event, a temp had opened all the envelopes in a pile, inadvertently spoiling a handful of mail-in ballots. Which is exactly why DOJ policy specifically bars announcement of an investigation before charges are actually filed. Ooopsie!

The fact that the allegations were complete horseshit didn't stop the White House from flogging them for weeks as evidence of widespread vote fraud to "get" Donald Trump. Which was, of course, the entire purpose of the EDPA announcement and whatever Barr just greenlighted with this disgraceful memo.

This morning the Washington Post quotes a Republican official dismissing Trump's claims of fraud and garbage lawsuits. "What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change," the official said. "He went golfing this weekend. It's not like he's plotting how to prevent Joe Biden from taking power on Jan. 20. He's tweeting about filing some lawsuits, those lawsuits will fail, then he'll tweet some more about how the election was stolen, and then he'll leave."

Because LOL who even cares if the president injects poisonous lies into the American bloodstream to erode Americans' faith in the electoral process and the strength of our democratic institutions? It's a victimless crime, right?

No, it's not fucking right. And it's a bloody disgrace that Bill Barr is abusing his office to make the Justice Department a party to the president's toxic attack on American democracy.

[NYT / WaPo]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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