The Washington PostDemocracy Dies in Darkness

Opinion The Justice Department must recognize how close we came to disaster

Then-Deputy Attorney General Jeffrey Rosen delivers remarks at a news conference at the Justice Department in July 2019. (Susan Walsh/AP)
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The revelation that the former president attempted to enlist the Justice Department to overthrow the 2020 election results should awaken all Americans to the danger our democracy faces. It should heighten concern about the Republican Party’s continued loyalty to someone who deployed every tactic to keep his grip on the presidency, which in addition to strong-arming the Justice Department, included a disinformation campaign and the incitement of violence.

Every Republican officeholder should be questioned about this and asked whether they still support him as leader of their party. And the Justice Department should conduct a thorough review of efforts to undermine the election.

The facts are bracing. The Post reports: “President Donald Trump’s staff began sending emails to Jeffrey Rosen, the No. 2 at the Justice Department, asking him to embrace Trump’s claims of voter fraud in the 2020 election at least 10 days before Rosen assumed the role of acting attorney general, according to new emails disclosed by the House Committee on Oversight and Reform.” In addition, “On the same day as the electoral college met to certify the election results — which was also the day Trump announced that William P. Barr would be stepping down as attorney general — his assistant sent Rosen an email with a list of complaints concerning the way the election had been carried out in Antrim County, Mich.”

Other officials, including former White House chief of staff Mark Meadows, engaged in a pressure campaign for the department to act on ludicrous, bogus conspiracy claims. These actions continued after courts threw out baseless claims of election fraud.

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This is precisely the sort of information that an independent commission should be reviewing as it examines the totality of facts leading up to the violent assault on the Capitol on Jan. 6. We are just learning about one aspect of the plot to prevent the duly elected president from taking office. What have we yet to uncover?

Given that Republicans are willing to protect their anti-democratic leader from any scrutiny and rebuff a bipartisan commission to conduct a thorough inquiry, the Justice Department should consider the following steps:

First, open a full criminal investigation into post-election actions in which officials were pressured to change election outcomes. This should include all efforts to manipulate the Justice Department and to pressure state officials (e.g., Georgia Secretary of State Brad Raffensperger). Refusing to hold wrongdoers accountable risks more sophisticated efforts to undo election results in the future.

Second, put together strict guidelines for Justice Department attorneys regarding efforts to undo lawful elections. Department guidelines should include whistleblower protections and an obligation to report such conduct to Congress. The department should make clear that participation in any such scheme is illegal and grounds for termination.

Third, pursue available legal action against the fraudulent Arizona recount (improperly cast as an “audit”) and copycat efforts around the country, which seek to further undermine November’s election results with fraudulent conspiracy theories. All legal theories should be explored.

More than six months after the 2020 presidential election, Arizona Senate Republicans are leading an audit of the 2.1 million ballots cast in Maricopa County. (Video: Erin Patrick O'Connor/The Washington Post)

As Lawfare blog explained in 2018 at the height of the Mueller investigation:

The crime of conspiracy to defraud the United States is not new. It has been sitting in plain sight in the general conspiracy statute, 18 U.S.C. §371, since 1948 (and an earlier provision with substantially similar language dates to 1867). The statute makes it illegal for two or more persons to “conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.”
Unlike conspiracy to commit an offense, conspiracy to defraud the United States need not be connected to a specific underlying crime, and “defraud” is not defined. In the 1910 case Haas v. Henkel, the Supreme Court interpreted the provision broadly to include “any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.”
Notably, there is no requirement that the government be cheated out of money or property.

Fourth, put together recommendations for Congress to overhaul and clarify the Electoral Count Act, such as instituting a supermajority requirement to challenge electoral votes. This should underscore that the vice president’s and House of Representatives’ roles are ministerial and that states must submit electoral results based on the popular vote in their state.

Fifth, compile an election-monitoring program for 2022 and 2024 to deploy Justice Department personnel who will be assigned to prevent intimidation, measure wait times for voting lines, observe election counting, receive complaints and, ultimately, render a report on the functioning of elections in all 50 states.

The presidential election system came perilously close to blowing up in 2020. Had Justice Department lawyers and state and local election officials not stood up to pressure from the White House and the administration’s toadies in state legislatures, we could well have reached a constitutional crisis. As Republicans set the groundwork to put partisans in charge of vote counting and testing out “audits” (not run by qualified state officials under existing law) to overturn election results, the Justice Department must douse the flames before one party burns down our democratic system. And it better come armed with more than the equivalent of a water pistol.

Read more:

Adam Schiff: The Justice Department must be depoliticized

Ruth Marcus: I’ve urged Supreme Court justices to stick around — but never to retire. Until now.

Eugene Robinson: Sunlight is the best disinfectant. Why do presidents forget that?

Katie Hobbs: I’m leading the fight for voting rights in Arizona. We need the Senate to step up, now.

Dana Milbank: Marjorie Taylor Greene led early in the House’s crazy stakes. But a dark horse has emerged.