Here's what Bill Barr's DOJ can — and can't — do to disrupt the 2020 race
Attorney General William Barr's "slavish obedience" to President Trump, including attacking the validity of millions of absentee ballots now being cast in the 2020 general election, prompted a federal prosecutor, Phillip Halpern, to publicly resign on October 14. He is the third to publicly criticize Barr.
"This career bureaucrat [Barr] seems determined to turn our democracy into an autocracy," wrote Halpern in a San Diego Union-Tribune column. "There is no other honest explanation for Barr's parroting of the president's wild and unsupported conspiracy theories regarding mail-in ballots (which have been contradicted by the president's handpicked FBI director)."
Halpern's resignation as an assistant U.S. attorney after 36 years at the Department of Justice (DOJ) raises the question of what a politicized DOJ could do to assist Trump's re-election.
Barr's "parroting" the false claim that mailed-out—or absentee—ballots are a pathway for large-scale voter fraud was akin to becoming one of the "super-spreaders of disinformation," as Emily Bazelon discussed in the October 18 New York Times Sunday Magazine cover story. But could the Justice Department intervene in the process where returned absentee ballots are accepted or rejected by local and state election officials, or go further and disrupt the counting of votes? In short, it cannot.
"They really don't have any authority," said Justin Levitt, a former deputy assistant attorney general who led the DOJ's voting rights enforcement in the Obama administration, speaking of administering elections. "The actual disruption, if it is going to come, will come from campaigns or private parties, but not from the DOJ."
"I know of no federal law that allows the federal government to intervene in a state-based process, under state law, of counting and certifying election results," said David Becker, who was a senior trial attorney in the DOJ's Voting Section for seven years, and now runs the nonprofit, nonpartisan Center for Election Innovation and Research.
"There is a requirement under federal law that all [election] materials, including ballots, be maintained for 22 months," Becker said, referring to a 1960s civil rights law that was intended to help prosecutors build voting rights cases. "That is largely for evidence gathering and after-the-fact review, if there might be some issue. That's actually useful."
No Authority to Interfere
The Justice Department has no legal authority to intervene in the process of accepting or rejecting any returned absentee ballot, the former DOJ attorneys explained. Nor does it have the authority to interrupt counting votes and certifying results. But what the attorney general and the department can do (and are doing) is issue statements containing misinformation or announce investigations in the campaign's final days to cast doubts on the validity of the process in key states.
"That's a media-based, press-based disruption, but not one that disrupts the count," Levitt said. "What I have been saying of late is reminding people that a lawsuit without provable facts of a statutory constitutional violation is just a tweet with a filing fee."
For months, Trump has been baselessly attacking absentee ballots as a pathway for voter fraud, especially as many polls revealed that millions of Americans, including more Democrats than Republicans, were planning to vote by mail in response to the pandemic. Since mid-summer, Trump has said that local and federal law enforcement would be watching polls and election officials. In September, Barr amplified some of the false claims about absentee ballot fraud.
Nonetheless, Americans have been casting unprecedented numbers of absentee ballots from coast to coast, according to the U.S. Elections Project. As of October 19, more than 29 million people had already voted early or with mailed-out ballots, and more than 82 million people requested absentee ballots. In 2018's general election, 31 million Americans voted absentee.
The ongoing response by the Trump campaign, assisted by the Republican National Committee and some GOP governors, has been to keep filing lawsuits and appeals to tighten the deadlines and rules surrounding absentee ballots. As Levitt noted, these were lawsuits filed by campaigns and political parties, not by the Justice Department, because, as he explained, the DOJ's legal oversight of elections was limited and restricted to three spheres.
"They've got three things they do. One is they can file civil litigation," he said, referring to civil rights laws that arose in the mid-20th century and were mostly concerned with protecting the rights of minorities and ensuring that their votes were counted.
"It's the former statutes that I used to enforce… It's a one-way ratchet," Levitt said. "If you think of the 1950s and 1960s, it makes sense. What Congress was worried about was local election authorities, in fact, not counting the votes of people based on their race or their perceived party. So, the federal government has power to make sure that people aren't improperly excluded."
The second sphere is enforcing election-related criminal codes, such as prosecuting ballot box stuffing (which is very rare), or election-related threats or violence. Those investigations would not be allowed to interfere with the processing of ballots and counting votes after Election Day, Levitt said, because the evidence gathering could continue after the results were certified.
"When DOJ enforces the criminal law, that has no meaning for the actual count of ballots," he said. "When they want to prosecute somebody for voter fraud, that's about individual accountability. But the state and local governments still decide whether the ballots count. So even if DOJ says, 'Yeah, these are fraudulent [ballots],' that has no legal impact whatsoever on whether a state wants to count them or not."
Under federal law, the DOJ has several years to investigate and prosecute, Levitt said, which means that they have no basis to immediately seize ballots or election records. Moreover, there is nothing unusual about federal agents observing elections, which has gone on for decades. Local officials also have protocols to let agents observe and make requests for records to be turned over as evidence, he said. But they cannot step in and reject or seize ballots.
"It's not like having somebody in the room breaks a spell and the ballots are invalid," Levitt said. "What local election officials will do is say, 'Okay, you want to inspect them, great. Here's a pile sitting over here. Come in and look, or I'll go through them. But they stay in that pile.' 'You want to see who this one's [return envelope] is opened for, let's go through our process, and we'll figure out whether a person is eligible or not. And we'll make a decision whether to count it or not, and then you can see… [whose votes are] on the inside of this ballot.' But DOJ sitting in the room is not going to affect if that ballot still has all of the indicators of eligibility."
Where the Justice Department has authority to influence elections, however, is in the press—the third sphere cited by Levitt. But such information warfare is not the same as prosecuting a legal case in a courtroom.
"Will the Trump administration or President Trump be screaming about fraud in the days after the election? The answer obviously yes. Of course, yes," Levitt said, referring to the potential for disinformation. "He was screaming about nonexistent fraud in the 2016 election, which he won. Three-to-five million noncitizen ballots, which is patent nonsense, and he's been out screaming about fraud ever since, without any evidence to support it."
"If you're asking what's the predicate for Trump to make up facts and claim that the election has been rigged, he's never needed one," he continued. "And unfortunately, we've seen the attorney general behave far more like Donald Trump's personal lawyer in this administration than any other I can recall. And unfortunately, we've seen DOJ already [do likewise], with a couple of press releases that should never have gone out."
In late September, Barr and Trump tried to elevate a minor procedural mistake surrounding nine absentee ballots in central Pennsylvania—a state where 6 million people voted in 2016—into a scandal implying that the 2020 presidential election would not have valid results. This incident, where nine ballots were mistakenly thrown out, followed Barr saying in early September that federal prosecutors had indicted a Texas man for fabricating 1,700 absentee ballots in 2017. There was no Texas indictment, and Barr garbled that case's facts, local officials said.
"I think the Luzerne County, Pennsylvania, case is a perfect example," said Becker, who left the DOJ after then-President George W. Bush's attorney general fired career prosecutors for failing to obtain voter fraud convictions—because alleged wide vote thefts had not occurred. In both instances, the department stepped away from its decades-old tradition of not interfering in elections.
"It is baffling to imagine that a relatively minor mistake that seems to have affected nine ballots, at the most, in a county like Luzerne County, Pennsylvania, would be somehow taken by the elected district attorney of that [county] and reported, not to the secretary of state, or the [state] attorney general, it's reported to the FBI and the DOJ took it up," Becker said. "Within three days, a press release was issued indicating, initially, that nine ballots were processed incorrectly. And also outing those voters as having voted for a particular candidate."
The department's actions were staged political theater, but not a real investigation, he said.
"First of all, three days is not sufficient for an investigation of that sort," Becker said. "Two, I really don't have any understanding about why a press release was issued about an incident where there is no crime and no criminal. By all accounts this was a mistake. It was a mistake that was fixable, because we knew who the voters were. They could have been contacted, and they could have been given another opportunity to vote, and those previous ballots spoiled."
"It was inexcusable [for the department] to release information about who those individuals had voted for," he continued. "And then, to make matters worse… this relatively minor mistake… was reported on the same day to the attorney general, who then communicated it to the president and used it in a campaign appearance that same evening."
Becker, echoing Halpern's resignation letter, said that the DOJ's reputation was, in part, based on keeping out of elections. But the department under Trump was heading in the opposite direction, at least with respect to positioning itself to issue more statements to help Trump's campaign.
"This is not the way the Department of Justice is supposed to work," Becker said. "I have further concerns about recent revelations that the Department of Justice has rescinded guidelines about interfering with the election, about putting out press releases and other things about the election, in close proximity to the election. That was an absolute tenet of ours when we worked there. We were not to become an actor in an election process. We were to investigate. We were, in some cases, to litigate and report out, but not in the context of possibly interfering in an election."
In his current role at the Center for Election Innovation and Research, Becker has been in contact with state officials—Democrats and Republicans—who are seeking to run a legitimate election this fall. Becker said that he has heard from top Republican election officials that Barr was not interested in the facts about absentee ballots.
"The attorney general is just wrong about the potential for fraud," Becker said. "He clearly doesn't understand how mail ballots work. Republican secretaries of state have offered to brief him on this and help him understand, and he has not returned their calls. He has been making claims about fraud that… have been rejected by federal courts. In some cases by judges appointed by President Trump. That is a concern."
However, when it comes to the actual processing of returned absentee ballots or counting votes, the former DOJ attorneys emphasized that neither Trump, Barr nor the Department of Justice have the legal authority to step in and disrupt the state-run election process. But that doesn't mean that Trump or Barr will cease reciting disinformation about the voting process—or that the DOJ will stop issuing press statements filled with innuendo.
"This has been this administration's modus operandi for the past three and a half years," Levitt said. "I think there will be plenty of made-for-media conflict that does not necessarily translate to any disruption of the count. But it is designed to freak people out."
Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, the American Prospect, and many others.