It was a memo so outrageous, it caused a top Justice Department official to quit on the spot. But for Donald Trump’s dwindling band of loyalists at the White House, it still wasn’t enough.
On Monday, Attorney General Bill Barr “authorized” Justice officials to investigate allegations of voter irregularities. But his memo doing so practically admitted there was little-to-no evidence for any such election fraud. The document warned that “specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries” and that “nothing here should be taken as any indication that the Department has concluded that voting irregularities have impacted the outcome of any election.”
The memo sparked a new wave of criticism that the president and his allies were willing to sacrifice the country’s democratic foundation in the pursuit of power. Even those steps weren’t enough to satisfy Team Trump, however. Shortly after Barr’s declaration broke, officials close to the president and working on his reelection effort said they thought the memo could give the president and Rudy Giuliani another element to incorporate into their messaging war against the results of the free and fair election, but that it wouldn’t prove to be the legal game changer that they needed.
“This is not what some of us wanted. This is not what I wanted,” said a senior official on the Trump reelection effort, following the news of the DOJ memo. “This will give the president [and others] something to play with for a while, but until Bill Barr actually puts up or shuts up, we’re still where we [have been].”
Another senior aide on the Trump campaign, reacting on Monday evening, said they had doubts that the memo would be “material,” since “U.S. Attorney investigations take forever.”
While Barr’s memo may have left Trump’s political orbit wanting, at the Justice Department, one prosecutor who spoke on condition of anonymity called it “shocking” that Barr would issue it “with no evidence of fraud whatsoever.” Barr’s memo was sent out widely, to all U.S. attorneys; the Justice Department’s criminal, civil rights and national security divisions; and the beleaguered FBI director, Christopher Wray, whom President Donald Trump has put under extraordinary political pressure.
It was enough to trigger the resignation of the Justice Department’s election crimes branch hours later, according to The New York Times.
“A nationwide call smacks of desperation,” the prosecutor told The Daily Beast. “They’re looking far and wide because they don’t have anything specific. If you had good evidence of fraud in Pennsylvania, or Georgia, you would focus there. DOJ hasn’t lent itself so far to any of the pending [Trump campaign] claims yet, indicating that nothing they’ve seen so far has a shred of merit they’re willing to tie themselves to.”
But the prosecutor said the memo could do real damage by its authorization of “overt investigative steps.” That means “encouraging prosecutors to do things that the public will notice,” throwing “red meat to the stop-the-steal base over the coming weeks even if doing nothing to change the outcome.”
At a minimum, Barr’s memo “lends further legitimacy to Trump’s attack on the results of the election,” the prosecutor continued, “That’s all bad for getting Americans to trust their democracy and respect the results of the election.”
The FBI declined comment. Trump campaign and White House spokespeople did not immediately respond, either.
The Barr memo capped a frantic day with escalating attacks from Trump and Republicans on the nation’s electoral system. And it foreshadowed a piqued and likely divisive chapter ahead as one of the two major political parties in American proves largely unwilling to accept the choice of the voters.
Senate Majority Leader Mitch McConnell (R-K.Y.) on Monday largely accepted President Donald Trump’s framing that something nefarious had led to him losing the states of Georgia, Arizona, Nevada, Wisconsin and Pennsylvania by relatively narrow margins. And he called for the courts to adjudicate any allegations of malfeasance. In Georgia, the two Republican Senators now heading to runoff elections launched a remarkable attack on the state’s Republican Secretary of State, over unclear insinuations of electoral improprieties—a charge the Secretary of State dismissed in an equally remarkable pushback.The Trump campaign, meanwhile, continued to dispatch surrogates across the country to raise specious allegations of out-of-state and dead voters casting ballots, computer malfunctions, and votes being cast without election watchers present.
Collectively, the charges seemed designed to create the appearance of controversy and scandal where none actually yet exists. The past several days have seen multiple legal attempts to slow or stop counting of certain batches of ballots fail not just in Nevada but Michigan and Pennsylvania—though that did not stop the Trump campaign from filing a new federal action in the Keystone State Monday night.
Internally, Team Trump and its allies had hoped that the Barr could fill that void. For days, outgoing President Donald Trump and several of his senior staffers and longtime confidants have been privately insisting that the Department of Justice hasn’t been nearly aggressive enough in intervening on Trump’s behalf in ongoing matters in key states, according to two sources familiar with the situation. “Why isn’t [DOJ] on this?” the president asked, during one of many outbursts last week regarding his and the GOP’s entirely groundless claims of Democratic theft of the 2020 presidential election.
Barr seemed to recognize that. Before issuing his memo on Monday, he met with McConnell on the Hill. According to a source familiar with the matter, the department had received and was looking into a referral from the Nevada Republican Party alleging thousands of cases of voter fraud and an affidavit from a Pennsylvania postal worker obtained by Sen. Lindsey Graham (R-SC) alleging voting irregularities. According to two other officials, the department in recent days has largely viewed the president’s election legal battles as solely a campaign issue.
“What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change,” one senior Republican official told the Washington Post. “It’s not like he’s plotting how to prevent Joe Biden from taking power on Jan. 20. He’s tweeting about filing some lawsuits, those lawsuits will fail, then he’ll tweet some more about how the election was stolen, and then he’ll leave.”
Daniel Stewart, former counsel to GOP Nevada Gov. Brian Sandoval, argued to The Daily Beast that—even if all the allegations in the affidavit were true—it’s impossible that issues described would account for Trump’s 36,000-vote deficit in the state. Trump’s performance in the state was generally consistent with past results and party enrollment figures, he noted, indicating that nothing too weird happened in Vegas last Tuesday.
Neither Stewart nor the Georgia Secretary of State ruled out the possibility of a few individuals getting caught and prosecuted for some kind of voting misconduct. But both defended the integrity of the elections in their respective states.
“Nothing I’ve seen, even if all the claims were true, would change the outcome of the election—would come close to changing the election,” said Stewart. “You got to be pretty crazy to argue that there was fraud on a scale that means Trump won Nevada. That just defies belief.”
As for the Barr memo, according to an individual familiar with election investigations, the FBI normally takes the lead in investigating the election fraud allegation in coordination with the U.S. attorney’s office. At a certain point thereafter, the Department of Justice’s Public Integrity Election Crimes Branch (ECB) would be consulted. The DOJ manual lays out a relatively clear pathway for the ECB on investigations related to the “corruption of the election process” and that office normally counsels attorneys not to take big investigative steps before the election has concluded and results have been certified. But in his statement Monday night, Barr said attorneys could bypass that general guidance and begin to investigate because “such a passive and delayed enforcement approach can result in situations in which election misconduct cannot realistically be rectified,” according to Barr’s note.
This is only the latest attempt by the Trump administration to inflame a self-serving hysteria over phantoms of voter fraud. In 2017, the administration created a commission on voter fraud, only to see it shutter after being unable to find evidence of it.
That has not stopped Barr from echoing Trump’s claims. He spent much of post-pandemic 2020 insisting as a matter of “common sense” that mail-in voting would open the door to fraud, another baseless claim. In September, Barr insisted falsely that mail-in voting posed the end of a “secret ballot,” misrepresenting publicly the double-enveloping and other election-integrity measures in place. That same month, the department had to admit that Barr “inaccurate[ly]” presented a story about indicting a Texan for falsifying 1,700 ballots.