The Department of Justice is reminding U.S. attorneys that they are free to break with nearly 40 years of precedent and publicly air unproven claims of voter fraud before the 2020 elections on Nov. 3.
Donald Trump is obsessed with voter fraud, and particularly voting fraud by mail. That’s not because there’s any evidence that voting fraud is anything other than an anomaly, but because he believes his tinpot presidency will crumble if it doesn’t undertake every possible opportunity to suppress the vote and undermine the results of elections. U.S. Attorney General Bill Barr, a reliable accomplice in the White House’s efforts to paint itself as under siege by a lawless opposition, told CNN in September that voting by mail as a “matter of logic is very open to fraud and coercion is reckless and dangerous, and the people are playing with fire.” He later claimed it would lead to a black market in fraudulent ballots.
A policy of non-interference was put in place when the DOJ Public Integrity Section’s Election Crimes Branch was formed in 1980. Its rationale is that publicly spouting off about voter fraud inquiries (say, at frenzied press conferences where minor and/or unproven incidents are portrayed as evidence of large-scale conspiracies to steal a race) could be reasonably construed as an intrusion into ongoing races.
Publicizing inquiries of any kind is extremely unusual for the DoJ for obvious reason: tipping off a suspect that they’re under suspicion could lead to them fleeing the country or tampering with witnesses, for example. Publicizing allegations of voter fraud runs an additional risk: putting the weight of the DOJ behind partisan claims. Per CNN, the chief of the Integrity Section gave the all-clear signal for U.S. attorneys to ignore that policy, so long as those accused of engaging in suspected electoral fraud are federal officials or employees.
An email sent by the section last Friday, obtained by ProPublica, shows that the DOJ office is now making exceptions to its “general non-interference with elections.” The agency singled out United States Postal Service workers and military ballots as areas of particular concern for any interested U.S. attorneys:
The email announced “an exception to the general non-interference with elections policy.” The new exemption, the email stated, applied to instances in which “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.”
This could clear the way for more federal prosecutors to shout about how they’ve uncovered some major voter fraud plot—even in the likely event said “plot” is actually a mistake with little statistic significance to the election’s outcome. A U.S. attorney in Pennsylvania issued claims last month that investigators had uncovered nine discarded military ballots, sending the Trump administration into overdrive to capitalize on the claim (Barr reportedly personally briefed Trump on it). Pennsylvania Secretary of State Kathy Boockvar later told reporters that the ballots were more than likely discarded by mistake, possibly because they arrived in unmarked envelopes.
“DOJ has not in the history that I have known relaxed any rule in a way like this,” CNN quoted legal analyst Anne Milgram as saying. “It is giving a green light to impact the election.”
“It’s unusual that [the DOJ is] carving out this exception,” said Vanita Gupta, who headed the DOJ Civil Rights office during the Obama presidency, told ProPublica. “It may be creating a predicate for the Justice Department to make inflated announcements about mail-in vote fraud and the like in the run-up to the election.”
Trump has repeatedly and relentlessly railed against voting by mail as an unprecedented fraud against the U.S. election system—outright lies designed to lay the groundwork to invalidate or ignore large numbers of ballots not cast for him—and he’s openly bragged that devastating cuts at the USPS are designed to prevent mail ballots from being counted. Internal USPS documents have shown sharp decreases in its processing and delivery times since mid-July, after Trump appointed as Postmaster General the massively ethically conflicted Louis DeJoy. DeJoy is now under congressional investigation after his former employees at New Breed Logistics and XPO Logistics alleged he ran an illegal straw donor scheme to obscure donations to Republican politicians.
Conversely, he has suggested that Democrats might seek to interfere with absentee ballots sent in by active duty military personnel (who Trump sees as staunch political allies). Trump and other members of his administration have more generally indicated that they think any election that does not result in his victory is illegitimate.
As CNN noted, federal guidelines indicate that informing the public of voter fraud investigations during the pre-election period at least used to be, in principle, frowned upon:
Historically, “in investigating an election fraud matter, federal law enforcement personnel should carefully evaluate whether an investigative step under consideration has the potential to affect the election itself,” according to the latest edition of the Federal Prosecution of Election Offenses. “Starting a public criminal investigation of alleged election fraud before the election to which the allegations pertain has been concluded runs the obvious risk of chilling legitimate voting and campaign activities.”
(This is separate from the issue of whether the Trump administration or the DOJ plan to claim mass voter fraud after the election, which they patently and obviously do.)
Justice Department spokesperson, Matt Lloyd, rattled off a meaningless explanation that the memo was just routine paperwork and thus nothing to worry about in a statement to CNN.
“Career prosecutors in the Public Integrity Section of the Department’s Criminal Division routinely send out guidance to the field during election season,” Lloyd told the network. “This email was simply part of that ongoing process of providing routine guidance regarding election-related matters. No political appointee had any role in directing, preparing or sending this email.”