We disagree: That’s a dangerous misreading of what the Barr memo portends.
An examination of the document shows that Barr has taken extraordinary steps to unleash powers within the Justice Department that permit far more than appeasement of the president with empty gestures. Barr is, once again, mixing politics and Justice Department policy, permitting the department to be weaponized to try to overturn the results of this election. The effects of this new policy could be realized within days. Indeed, Barr states in the memo that he has already authorized election investigations. Watch out for announcements (or leaks) of federal inquests that appear to provide a veneer of substance to bolster Trump and his attorney Rudolph W. Giuliani’s empty allegations calling into question the rightful outcome of the election.
The Barr memo contains three revealing elements, each of which lowers the threshold for instituting an improper political investigation.
First, Barr changes the timing and goal of an election investigation by the department. Prior Justice Department policy forswore seeking to reopen an election after it ended, and thus called for only covert investigative steps so as not to interfere with voting or the counting and certification process. Except when there was reason to think records might be destroyed corruptly or to further an ongoing scheme, the department was to avoid overt steps until “the election to which they pertain had been certified and the time for contesting the election results had expired.”
But Barr has changed the very goal of these investigations, explicitly authorizing actions before certifications, labeling the previous approach as “passive” and “delayed,” such that federal agents could not realistically “rectify” an election. Such rectification has not previously been a goal of federal enforcement by the elections branch. Yet now, Barr cryptically notes that he has already authorized such investigations.
Second, Barr lowers the threshold for opening an investigation, noting that even mere “irregularities” can be investigated — as opposed to only potential crimes. Shockingly, nowhere does he say that the allegations must rise to a criminal level. Until Monday, long-standing policy has explicitly held that noncriminal irregularities must be redressed through other means, such as recounts, educational programs, disciplinary actions and private lawsuits, most of which the federal government would have played no part in. But conveniently, as Trump pursues evidence-free claims of irregularities, Barr conspicuously fails to note a criminal threshold that prosecutors should be using to assess the propriety of pursuing cases. Now all the evidence needed is allegations that aren’t “specious, speculative, fanciful, or far-fetched” — bald adjectives that set a low bar that can be easily manipulated to justify opening an investigation.
Third, Barr takes pains to underscore the “inherent authority” of each of the 93 U.S. attorneys throughout the country to decide whether to open an investigation “as they deem appropriate,” without approval from the attorney general or the Justice Department’s career Public Integrity Section personnel in Washington. This approach, permitting disparate decision-making and evaluations, is in striking contrast with Barr’s approach to investigations involving political campaigns (which now require his approval) or any investigation involving Russian interference (which also requires central oversight and approval). One might think a responsible attorney general would seek greater oversight over the gatekeepers to such investigations, but this memo does the opposite, allowing many Trump appointees to make their own decisions on highly sensitive investigations throughout the country.
Some have tried to calm public anxiety by noting that the Justice Department could not conclude such investigations before states certify their elections in the weeks ahead. But that misses the point: The sum of these three parts is not intended to provide for a completed genuine or rigorous investigation. Barr’s new policy allows the Justice Department to lend credibility to false claims of election fraud by opening “preliminary inquiries” into such allegations in the coming days. Indeed, the memo encourages prosecutors to take this step: “It will likely be prudent to commence any election-related matters as a preliminary inquiry, so as to assess whether available evidence warrants further investigative steps,” Barr instructed his subordinates.
The predictable result is the launch of several Justice Department inquiries into allegations of “irregularities” with the electoral results that will, only months afterward and far too late, be proved false. Before the meritless nature of the investigations are discovered, the goal of the new policy can be achieved. The short-term effect may very well bolster the Trump campaign’s efforts to stop state election officials from certifying results, so as to encourage state legislators to select electors for Trump despite a Biden win, and more generally to cast doubt on the legitimacy of Biden’s victory in the mind of the unsuspecting public.
This isn’t a new tactic. Barr has engaged in manufacturing provable lies before — the type that “often takes time to uncover, and by that point, Barr may already have succeeded in his goal.”
It is no wonder that the top Justice Department official who oversees investigations of voter fraud, Richard Pilger, resigned Monday night after, in his words, “having familiarized myself with the new policy and its ramifications.” He would presumably not have done so or said so if the new policy was just in the realm of theatrics rather than a real and present threat.
Propaganda experts describe a disinformation strategy of releasing “a firehose of falsehood,” which the Barr policy appears designed to do. Those same experts advise providing the targets of disinformation with “raincoats” in advance. Here that means journalists covering the election and the public as well should know what to expect from Barr’s devious strategy. Barr, in explaining his disagreement with then-FBI Director James B. Comey’s 2016 conduct, testified during his confirmation hearing that federal law enforcement authorities should not take actions that could sway an election, since the incumbent party has its hands on the “levers of the law enforcement apparatus.” Now he has done just that, and in a systemic and deliberate way that is far worse than the rogue behavior Comey undertook. The next attorney general should revoke this policy, but in the meantime career officials must uphold their oaths of office not to undertake matters for political aims.