Attorney General Bill Barr took the extraordinary step Monday of empowering Justice Department prosecutors to get involved in the 2020 election result and ongoing vote count by authorizing DOJ lawyers to investigate Trump-fueled allegations of voting irregularities “in certain cases.” Trump, of course, has lost the election by every major new outlets’ projection, and the election results are set to be officially certified by individual states over the coming weeks as they finalize their vote tallies. It’s standard operating procedure and it happens every four years exactly this way, though most of us move on after election night because the race is usually decided by then. Barr’s move, however, is explicitly aimed at leaving the door open to intervening in the election result before those results are certified, a significant departure from the Justice Department’s established policies aimed at keeping it from mucking around in American election results, as well as the appearance of doing so. Barr’s injection of the Department of Justice into the vote count was noxious enough to prompt the DOJ’s top election crimes prosecutor to resign in protest.
The long-standing DOJ policy is to stay away from election-related investigations until after the election is done and dusted—and the results certified. Barr wants to wade in now, however, on the off chance he finds something juicy enough that could raise questions about the result. “The [Election Crimes Branch’s] general practice has been to counsel that overt investigative steps ordinarily should not be taken until the election in question has been concluded, its results certified, and all recounts and election contests concluded,” Barr wrote. “Such a passive and delayed enforcement approach can result in situations in which election misconduct cannot realistically be rectified. … [A]ny concerns that overt actions taken by the Department could inadvertently impact an election are greatly minimized, if they exist at all, once voting has concluded, even if election certification has not yet been completed.”
Barr hit all of the legal buzzwords in his memo to give the impression that he is acting in a constrained way, rather than a radical overreach of established norms of the department’s political independence and principles of noninterference. “Such inquiries and reviews 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 wrote. But there haven’t been any of those type of allegations so far and the allegations that have been made by the current president are so far outside the bounds of good faith that a DOJ investigation serves as a legitimizing act of Trump’s antics, rather than of the election result itself.
The intent of Barr’s move was clear enough to Richard Pilger, a career prosecutor who heads up the Election Crimes Branch of the DOJ’s Public Integrity Section, that Pilger resigned within hours of the memo, citing the “new policy abrogating the forty-year-old Non-Interference Policy for ballot fraud investigations in the period prior to elections becoming certified and uncontested.” “Having familiarized myself with the new policy and its ramifications,” he wrote, “I must regretfully resign from my role as director of the Election Crimes Branch.”
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