His political rhetoric does not end there. Barr has also been parroting Trump’s talking points on the coming election. As states have turned to increased voting by mail to protect voters during the covid-19 pandemic, Barr has expressed concerns about fraud, suggesting during an interview with CNN’s Wolf Blitzer that a foreign adversary could mail in counterfeit ballots — despite the use of bar codes to identify and track individual ballots. Barr has also inaccurately claimed “elections that have been held with mail have found substantial fraud and coercion,” referencing a federal indictment charging someone in Texas with collecting 1,700 ballots from eligible voters and altering them. There was no such indictment. Barr cites no statistics to support his claims that voting by mail is subject to fraud; he says he relies on “logic” and “common sense.”
Add those comments to the long list of indications Barr is only too willing to use the levers of government to protect Trump’s presidency: his “misleading” representations of Robert S. Mueller III’s investigation into Russian election interference, his decision that Trump’s conduct to interfere with Mueller’s work did not amount to obstruction of justice, his motion to dismiss charges against former national security adviser Michael Flynn after a guilty plea and his recommendation of leniency for Trump adviser Roger Stone. Barr has demonstrated a determination to use his position — and the legal powers of the federal government — to advance the president’s political interests.
So what damage could Barr do in the days and weeks after the election to help Trump stay in office no matter what voters might prefer?
First, Barr has the power to file criminal charges of voter fraud. The presidential election is really state elections, but that doesn’t mean the federal government can’t step in: The Justice Department has jurisdiction to allege voter fraud in federal court in any election where a candidate for federal office is on the ballot. Voter fraud can take on a number of forms, including the somewhat vague statute making it a crime to “knowingly or willfully conspire with another individual for the purpose of encouraging illegal voting.” Of course, anyone who tampers with ballots should be held accountable and brought to justice. But Barr has long lost the presumption of good faith in his handling of criminal cases. He has at the very least created the appearance of a willingness to use the law to benefit Trump’s allies and punish his perceived enemies. Besides diverging from department policy and practice to provide favorable treatment to Flynn and Stone, Barr has also appointed U.S. Attorney John Durham to investigate the origins of the Russia probe, turning the tables on those who dared to investigate Trump despite a finding by the Justice Department’s inspector general that the investigation was properly authorized and predicated on fact. Rather than complying with existing policy to neither confirm nor deny the existence of an investigation, Barr has called the Russia investigation “one of the greatest travesties in American history” — before Durham’s work of examining it is done.
A determined Barr could use the fraud statute to charge voters, the Democratic Party or even state election officials with a crime. Barr has publicly criticized the practice, permitted in some states, where people can collect the absentee ballots of others and deliver them to polling places. Barr has referred to this practice as ballot “harvesting,” arguing it is subject to fraud, even though cases have been rare: “Capricious distribution of ballots means harvesting, undue influence, outright coercion, paying off a postman, here’s a few hundred dollars, give me some of your ballots.” Although it would take an aggressive application of the statute to consider picking up absentee ballots a conspiracy to encourage illegal voting, it’s not beyond plausibility, especially considering reports Barr explored charging Seattle Mayor Jenny Durkan with crimes for allowing a police-free zone during periods of unrest.
Criminal charges alleging widespread voter fraud could lead to loss of confidence in the outcome of the election, leading some to believe a Biden victory is illegitimate.
Barr could also involve the Justice Department in civil suits challenging election results.
Because elections are run by the individual states, the U.S. attorney general probably wouldn’t have standing to file his own lawsuit. But the federal government could file what is known as a “statement of interest.” A federal statute permits the attorney general to send a lawyer into a state or federal court proceeding to “attend to the interests” of the United States. This usually takes the form of a written filing known as a statement of interest to take a position or explain the law in a particular case. This year, Barr filed a statement of interest in a case in which private parties sued the governor of Michigan to challenge her executive orders restricting business activities during the pandemic. A statement of interest can signal to others the position of the Justice Department on a legal matter in which it is not a party, and it can influence a judge in deciding a case.
If a candidate or party filed a lawsuit challenging the election results in one or more states, a statement of interest would allow the Justice Department to make arguments that favor Trump’s campaign. Think Bush v. Gore but with the U.S. government taking sides. That tactic could bring the powerful voice of the Justice Department to the case, potentially influencing the court of law as well as the court of public opinion.
In the event of election interference by an adversary or even human error surrounding the complications of voting during a pandemic, Barr could capitalize on the chaos, too. Experts have speculated on scenarios involving Russian hacking of ballots, creating confusion at the polls by disrupting databases or sowing doubt in the vote count by spreading disinformation, or simply late or contested ballot counting. If no candidate is certified as the winner before Jan. 20, Trump’s current term would expire, but the succession to the presidency would be unclear. Barr could use the department’s Office of Legal Counsel to issue an opinion regarding succession to his preferred choice.
If no new president were chosen by the electoral college, and Trump’s term expired, the new president could not be Mike Pence because his term as vice president ends at the same time as Trump’s term. According to the presidential succession statute, next in line for the presidency is the speaker of the House, Nancy Pelosi, who would have been seated on Jan. 3 — unless the House election in California is also disrupted, in which case her term would also expire. The statute provides next in line is the president pro tempore of the Senate, usually the most senior member of the majority party. But if elections are disrupted for the one-third of the Senate facing reelection, then with more Democrats than Republicans remaining, the Democrats could have the majority, and the most senior of them would be Patrick J. Leahy (Vt.), making him the president.
But here is where Barr could make serious mischief. Some scholars have argued the presidential succession statute is inconsistent with Article II of the Constitution, which permits Congress to declare which “officer” succeeds the vice president to the presidency. They argue that “officer” is limited to an official in the executive branch and may not be a member of Congress. If Barr were to advance this view, then the next in line under the succession statute is the secretary of state, Mike Pompeo. It might take a legal battle, but Barr might find it attractive to litigate on behalf of a fellow conservative who shares his view of America values.
The Justice Department has long taken pride in being independent of politics. Barr’s erosion of this tradition could take our country to a very dark place — sooner than we think.