On Monday, President Donald Trump once again challenged the legitimacy of the upcoming presidential election, saying on Twitter that November’s ballots “cannot be accurately counted.” The legal wrangling over that count has already begun, but Trump in recent days has escalated his unfounded claims of fraud and challenges to the legality of the vote. Fortunately for the president, Attorney General William Barr is working overtime to feed that false narrative—and also to offer potential future support, should the vote count be litigated in the courts.
Indeed, last week a U.S. attorney in Pennsylvania announced that his office was investigating “potential issues” with the handling of nine presidential election ballots in a single, heavily pro-Trump county. The presumptuousness of the announcement—the department does not usually announce preliminary investigative findings, particularly when it is far from clear that a crime has even been committed—was further underscored when, within hours, the office had to revise down the number of ballots that had supposedly been cast for Trump. One expert correctly told the Washington Post that the episode was “wildly improper” and “truly unconscionable,” and mainstream outlets were admirably quick to explain that it was designed to bolster Trump and Barr’s baseless claims about the dangers of mail-in voting. Perhaps even more disturbing, the episode may reflect a concerted effort by the department to actively generate evidence for the Trump campaign to cite in future court battles over the election results.
Before Trump, the department generally limited official statements to the media to announcements of criminal charges, major new initiatives, or resolutions to significant investigations and cases. Among other things, this is supposed to help ensure that trials are decided on the basis of evidence in court, not claims or insinuations in the press. Yet under Barr and, before him, Jeff Sessions, the Trump administration has transformed the work of the department’s once-staid public affairs apparatus into yet another partisan instrument of the administration.
Take, for instance, a press conference earlier this month about an initiative ostensibly to counter fraud in the Paycheck Protection Program. The nominal basis for the gathering was that the department had charged more than 50 people over the last six months, but this arbitrary milestone was pulled entirely out of thin air. More likely, the department wanted to gin up some favorable national coverage—which mostly worked—for an initiative that had recently been weighed down by revelations that much of the fraud was likely exacerbated by the Trump administration’s incompetent rollout of the program and the Small Business Administration’s failure to implement basic anti-fraud safeguards. The prosecutions to date have also been a decidedly mixed bag—the number of them has been leavened by crude and unsuccessful attempts to obtain money that don’t look much different than previous dumb and unsuccessful attempts at bank fraud—and the dollar amounts that may actually have been unlawfully acquired represent a sliver of the program’s output.
The officials in that press conference, though, were following in the footsteps of their boss. In late March and early April—when Trump was holding daily press conferences so that he could pretend that the administration was containing the pandemic—Barr joined for two appearances that were transparently intended to distract attention from the administration’s own deadly failings. Barr took part in one about international drug interdiction, for no discernible reason except that the subject was not about Americans dying from the virus. The other was about the start of a supposed crackdown on the allegedly widespread hoarding of personal protective equipment—an effort that received its own self-congratulatory interim status update months later even though, if you read the propaganda closely, you learned that the effort had yielded only a handful of prosecutions. Barr executed an even more efficient flurry of fact-free misinformation when he steamrolled CNN’s Wolf Blitzer in a 30-minute interview that included Trump-friendly talking points about Black Lives Matter and election fraud, all while managing to avoid any questions about the department’s own dismal legal response to the virus.
Meanwhile, the department has been issuing daily press releases for the last month on the progress of “Operation Legend,” a supposed crackdown in response to “the sudden surge of violent crime” in the country. The releases read like a local police blotter, but they support Trump and Barr’s efforts to portray leftist, anti-police protesters as the cause of supposed urban anarchist hellscapes across the country. This is despite the fact that here, too, a real increase in crime is substantially driven by the administration’s failure to control the pandemic.
This abuse of the department’s considerable agenda-setting capabilities has been on display in unlikely areas as well. The department has been engaged in a yearslong PR campaign promoting a highly questionable crackdown on “spoofing” in financial markets that is part of what’s left of the administration’s white-collar criminal enforcement program. Prosecutors had lost most of the trials in the area until last Friday, when, as a carefully worded press release put it, two people were found guilty of “fraud charges.” The release neglected to mention that the defendants were acquitted on over two-thirds of the charges in the case—including the most significant one by far—which most informed observers would call another loss. The upshot of the jury’s findings was that several people had affected an economically meaningless market to the tune of perhaps several thousand dollars over a period of five years, and the “victims” in the trial were the millionaires and billionaires who own two of the most profitable companies in a semi-parasitic industry. (Disclosure: While still at the department, I wrote the briefs defending the legal theory in the case, as well as an internal memo outlining some potential improprieties in the investigation.)
Last week, a judge questioned the propriety of another creative and partisan use of the Justice Department’s media apparatus—when, in late 2017, the department’s public affairs office surreptitiously coordinated the release of text messages between former FBI lawyer Lisa Page and agent Peter Strzok in order to undermine Robert Mueller’s special counsel investigation. We learned early this year that the decision to do this was made by then–Deputy Attorney General Rod Rosenstein. Secretly releasing raw material from an ongoing investigation is highly unusual, to put it mildly, and a judge did not buy the department’s preliminary defense of this episode as “routine.”
There are lessons that much of the media has not learned through all of this, perhaps because, Barr aside, federal prosecutors still enjoy a large reservoir of credibility from the press and the public. Some caution and basic questioning would go a long way.
For instance, if you have not heard of a federal prosecutor before, find out about him. (In the case of U.S. attorneys particularly these days, it’s almost always a white “him.”) The announcement about ballots in Pennsylvania came from a Republican with no prior federal law enforcement experience before he became a U.S. attorney under Trump. The guy who led the PPP fraud press conference is a former Trump White House lawyer who was designated a few months ago as the acting official overseeing 600 criminal prosecutors in Washington, even though he has no experience as a prosecutor, federal or otherwise. These are not people with a demonstrated commitment to—or even awareness of—federal law enforcement norms, but what they do have is a professional future that is inextricably linked to the prospects of Trump and the Republican Party.
Other questions to ask include whether the announcement in question is consistent with prior Justice Department practice and whether there is a potential partisan motive for the disclosure. Perhaps even more important: Is there anything missing from the disclosure? For instance, the department officials at the PPP fraud press conference had nothing to say during their self-congratulatory 45-minute session about the fact that the department has done nothing of consequence about the significant coronavirus consumer fraud that has led to about $150 million in reported losses to date, or the massive fraud that appears to have cost state unemployment agencies hundreds of millions of dollars. None of the virtually assembled press asked, either.
The announcement of the mail-in ballot investigation was unusually brazen in its partisan objective, and it was handled well by mainstream outlets. But it was not the first of its kind, it will not be the last of its sort before the election, and other efforts to manipulate the media and the public may be more difficult to detect.