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Justice Dept. statement on mail-in ballot investigation appalls election law experts

A voter cast her mail-in ballot at in a drop box in Pennsylvania. (Matt Rourke/AP)

The Justice Department alarmed voting-law experts Thursday by announcing an investigation into nine discarded ballots found in northeastern Pennsylvania, a case immediately seized upon by the Trump campaign as evidence of a dark Democratic conspiracy to tamper with the presidential election.

President Trump also appeared to cite the case, telling reporters at the White House that ballots had been found “in a wastepaper basket in some location. . . . We want to make sure that the election is honest, and I’m not sure that it can be.”

The president’s comments marked his latest attempt to stoke uncertainty and alarm about the legitimacy of the upcoming election.

FBI Director says widespread ballot interference would be very difficult

Trump appeared to be referring to a statement issued by David J. Freed, the U.S. attorney in the Middle District of Pennsylvania, saying that he was overseeing an investigation into nine discarded military mail-in ballots in Wilkes-Barre area.

Lori Cash, a 22-year USPS veteran, talks about the Trump administration's influence on the Postal Service and how it is causing concerns for mail-in ballots. (Video: The Washington Post)

Freed said the Luzerne County district attorney requested an FBI investigation into reports of problems with a small number of mail-in ballots.

“At this point we can confirm that a small number of military ballots were discarded. . . . Of the nine ballots that were discarded and then recovered, 7 were cast for presidential candidate Donald Trump. Two of the discarded ballots had been resealed inside their appropriate envelopes by Luzerne elections staff prior to recovery by the FBI and the contents of those 2 ballots are unknown.”

When Freed first announced the case, he had said that all nine were cast for Trump. He said agents are still investigating the circumstances.

Attorney General William P. Barr has made false or misleading statements about mail-in voting, federal investigations and Justice Department personnel moves. (Video: The Washington Post, Photo: Matt McClain/The Washington Post)

Before the U.S. attorney’s statement, White House spokeswoman Kayleigh McEnany told reporters that there would be an announcement about the case. “I can confirm for you that Trump ballots, ballots for the president, were found in Pennsylvania and I believe you should be getting more information on that shortly,” she said.

A statement issued by the local district attorney earlier in the week expressed confidence that the investigation would be “successfully resolved so it will not have an impact on the integrity of the election process,” a degree of assurance absent from the U.S. attorney’s announcement.

A spokesperson for the U.S. attorney declined to comment beyond Freed’s written statement.

Election law experts were stunned at the nature of the Justice Department statement.

“It’s wildly improper, and it’s truly unconscionable,” said Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles.

Levitt said that the investigation itself is worthwhile but that it was a baldly political move to announce the probe with partial facts — which officials then had to scramble to correct — while describing which candidate was selected on the ballots.

“That is the tell, and it says this was not an act of law enforcement, this was a campaign act, and it should mean the end of the career of whoever approved the statement,” said Levitt.

Richard L. Hasen, an election law professor at University of California at Irvine, said he could not recall ever seeing such an announcement.

“The Justice Department should not be a political tool, and this is a story that is going to be manipulated by the president to say his votes are being thrown out,” Hasen said.

Soon after the U.S. attorney’s statement was issued, the Trump campaign cited the case as evidence “Democrats are trying to steal the election.”

Earlier in the day, FBI Director Christopher A. Wray tried to reassure a Senate committee that although there are occasional instances of small-scale, local ballot fraud, the United States has not experienced an instance of widespread voter fraud by mail.

“We have not seen historically any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise” Wray said, though he added that fraud has been detected “at the local level from time to time.”

Changing the outcome of a federal election “would be a major challenge for an adversary,” he said, adding that the FBI “would investigate seriously” if it saw indications of such an effort.