Current and former US Department of Justice (DoJ) officials have reacted with anger and dismay to the latest move in support of Donald Trump by William Barr, the attorney general who has stoked further discord around the president’s refusal to concede electoral defeat by approving federal investigations into voter fraud, despite little evidence of any wrongdoing.
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Barr’s two-page memo, delivered to the 93 US attorneys across the country on Monday, was immediately condemned by senior figures inside and outside the DoJ.
In the most dramatic response, the top DoJ official in charge of voter fraud investigations, Richard Pilger, resigned from his post, telling colleagues he did so because of the “ramifications” of Barr’s move.
In a statement, Pilger pointed out that for the past 40 years the justice department had abided by a clear policy of non-intervention in elections, with criminal investigations only carried out after contests were certified and completed.
Barr’s memo tears up that rule by giving federal prosecutors the go-ahead to investigate what he called “apparently-credible allegations of irregularities”. His action was specifically aimed at closely fought presidential contests in swing states with prolonged vote counts caused by the challenges of the coronavirus pandemic.
Complaints about unsubstantiated irregularities have been received by the justice department from three states: Nevada, Michigan and Pennsylvania.
Let’s be clear, this is about disruption, disinformation and sowing chaos
Vanita Gupta
Outside the DoJ, there was widespread unease that Barr has once again mobilised the might of the justice department in a politicised direction. The memo was interpreted as casting doubt on the propriety of the election, which on Saturday was called for Joe Biden following his victory by a clear and growing margin in Pennsylvania.
Vanita Gupta, a former head of the civil rights division of the DoJ under Barack Obama, denounced Barr’s tactics as “scaremongering”.
“Let’s be clear, this is about disruption, disinformation and sowing chaos,” she said on Twitter:
Gupta, now chief executive of the Leadership Conference on Civil and Human Rights, said Barr’s aim was “stoking division, polarization and lies”, in order to “undermine confidence in outcome with Trump voters and ultimately a Biden administration”.
Other former prosecutors, legal scholars and election experts debated how serious Barr’s move was likely to be. Steve Vladeck, a specialist in national security law at the University of Texas, stressed that the DoJ had no power to block states from certifying election results – only judges could do that.
But Vladeck went on to describe the Barr memo as “ominous” in that it “perpetuates the illegitimacy narrative” that has been embraced by Trump and senior Republicans in the hope of clouding Biden’s victory.
Preet Bharara, who Trump fired in 2017 as US attorney for the southern district of New York, gave a similarly nuanced response. For now, he said, he was “more disgusted than scared” by Barr’s intervention.
“But stay tuned.”
Barr specifically refers in his memo to the 40-year-old non-intervention policy over which he has now run roughshod. He denigrates it as a “passive and delayed enforcement approach”, and says it was never a “hard and fast rule”.
Later in the letter, he softens his advice to federal prosecutors, urging them to follow “appropriate caution” in line with the DoJ’s commitment to “fairness, neutrality and non-partisanship”.
“Specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries,” he says.
Those sentences prompted some speculation that Barr was merely going through the motions to placate Trump. The president has by all accounts been on the warpath since the election was called for Biden, ordering his administration to take any action to forward the lie that the election has been stolen.
But such a theory of Barr’s conduct is countered by the fact that this is not the first time he has attempted to push prosecutors into intervening in the election. Three weeks before election day, he made a similar gambit to lift the decades-old restriction on intervening in the middle of a race.
Having been appointed by Trump to be the nation’s most senior prosecutor in February 2019, Barr has shown himself willing to side openly with the president in apparent breach of the time-honoured independence of his office. One notable example was his handling of the publication of the Mueller report into collusion between Trump’s 2016 campaign and Russia, which was criticized as spin on behalf of the president.
More recently, Barr has mirrored Trump’s attempts to sow doubt on the election. In particular, the attorney general has intensified baseless claims from the White House about rampant fraud in mail-in voting – a form of electoral participation that has long been practiced by some states and that was widely used this year.
Barr went as far as to lie on live television about an indictment for an electoral crime in Texas. Officials were forced to retract the statement, as the supposed incident never took place.
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Doubts about Barr’s intentions were heightened after it was reported that a few hours before the letter to prosecutors was disclosed, he met with Mitch McConnell, the Republican Senate majority leader.
McConnell has remained in lockstep with Trump, showing no sign he is prepared to break with a president whose resistance to accepting defeat shatters a norm of a peaceful transition of power that has been central to US democracy since 1800.
McConnell, who is likely to continue to control the Senate for the Republicans unless Democrats can win two runoff elections in Georgia in January, has declared his loyalty to Trump.
He said: “President Trump is 100% within his rights to look into allegations of irregularities and weigh his legal options.”
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