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New Justice Dept. election fraud guidance could allow boosting of Trump’s exaggerated claims, legal observers say

The U.S. Department of Justice.
The U.S. Department of Justice. (Alastair Pike/AFP/Getty Images)
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The Justice Department recently issued guidance giving federal prosecutors more leeway to take public action on suspected election fraud before ballots are in — a move that some legal analysts worry could foreshadow an effort to bolster President Trump’s exaggerated claims of fraud via mail-in voting.

The guidance, which came in an email from a career official in the department’s public integrity section, detailed what it called an “exception to the general non-interference with elections policy,” which discourages prosecutors from taking overt steps in fraud investigations until all ballots are counted and certified.

The exception would apply, the email indicated, “where the integrity of any component of the federal government is implicated by election offenses within the scope of the policy, including, but not limited to, misconduct by federal officials or employees administering an aspect of the voting process through the United States Postal Service, the Department of Defense, or any other federal department or agency.”

Postal carriers transport mail-in ballots, and defense officials are involved in transporting military ballots.

Trump and Attorney General William P. Barr have repeatedly attacked mass mail-in balloting as being susceptible to fraud, though the evidence does not support their claims. Critics say the two seem to be working in concert to undermine public confidence in the election result, and the newly issued guidance could aid in that effort — allowing prosecutors to publicize cases of suspected fraud that they previously would have been barred from discussing.

Barr claims a man collected 1,700 ballots and filled them out as he pleased. Prosecutors say that’s not what happened.

“It’s not good to have an exemption from a noninterference in elections policy. That means, ‘here are the ways we are allowed to interfere in elections,’ ” said Justin Levitt, a former official in the Justice Department’s civil rights division who worked on voting issues. “I worry that this policy is a green light to use federal law enforcement investigations for partisan political purposes.”

Matt Lloyd, a spokesman for the Justice Department’s criminal division, said in a statement, “No political appointee had any role in directing, preparing or sending this email.”

“Career prosecutors in the Public Integrity Section of the Department’s Criminal Division routinely send out guidance to the field during election season,” he said. “This email was simply part of that ongoing process of providing routine guidance regarding election-related matters.”

The email was first reported by ProPublica.

Critics say Barr has repeatedly shown a willingness to use the Justice Department to help Trump win the election.

The attorney general, for example, has said he would not hold back any findings from U.S. Attorney John Durham, whom he tapped to investigate the FBI’s 2016 investigation into Trump’s campaign, if they come before Election Day. Conservatives are hopeful that the Durham probe could produce findings damaging to Trump’s critics and bolster his assertion that he was investigated wrongly.

Last month, in a move that was widely criticized by voting-law experts, the Justice Department publicly announced an investigation into nine discarded ballots found in northeastern Pennsylvania, and Trump immediately seized on the case to support his claims of a conspiracy to undermine his election. Barr had personally talked to the president about the matter, according to a person familiar with the situation.

Barr says he won’t wait until after election to reveal Durham’s findings. Democrats fear a campaign-altering surprise.

Justice Department policies and tradition call for prosecutors not to take steps that might impact an election. As his predecessors have done, Barr issued guidance in May saying prosecutors “may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

Barr also tightened the rules on investigations involving those running for office, making it so law enforcement must get his written approval before initiating even a preliminary investigation of a candidate for president or vice president, or their campaigns, senior staff members or advisers.

Justice Department policies call for particularly sensitive treatment of alleged election fraud. A 2017 manual noted that “overt criminal investigative measures should not ordinarily be taken in matters involving alleged fraud in the manner in which votes were cast or counted until the election in question has been concluded, its results certified, and all recounts and election contests concluded.” The manual noted, however, that there could be exceptions, such as “when it is possible to both complete an investigation and file criminal charges against an offender prior to the period immediately before an election.”

In an August 2020 memo, the head of the Justice Department’s public integrity section also wrote that an exception to the rules “may also be appropriate where a federal official entrusted to facilitate the voting process, such as a postal carrier, allegedly engages in election fraud using his or her official position.”

Justice Dept., FBI planning for the possibility of Election Day violence, voting disruptions

Vanita Gupta, a former head of the Justice Department’s civil rights division who is now president of the Leadership Conference on Civil and Human Rights, said the Justice Department’s latest guidance was “not normal” and could serve as a “predicate” for announcements like that in Pennsylvania.

“It’s really important for people to understand that they should actually be paying attention to what local and state election officials are saying, rather than what Bill Barr is saying,” Gupta said. “He has shown himself to be a partisan, and state and local election officials are overseeing the counting of their ballots.”

Levitt said the highlighting of postal workers was notable.

“It makes me think that what’s coming is a series of announced investigations or partial theories of incomplete facts, pertaining to the mail-in voting process, that are further designed to undermine the integrity of an election process that is actually quite secure,” he said.

A Justice Department official, speaking on the condition of anonymity to discuss internal deliberations, said the email was not intended to reflect a policy change, but rather to highlight particular scenarios in which federal employees become involved in the voting process.

“In that circumstance, corruption by federal personnel is already an interference in the State and local election process, and necessarily requires a federal overt remedy because it occurs outside most State and federal jurisdiction,” the official said.