Analysis

Barr's Election Fraud Memo Leaves Ex-Prosecutors Queasy

Law360 (November 10, 2020, 8:10 PM EST) -- U.S. Attorney General William Barr departed from long-standing U.S. Department of Justice policy Monday night with a memo permitting federal prosecutors to investigate any "substantial" allegations of voting irregularities, in a move former prosecutors described Tuesday as "disheartening" and "disgusting."

Up until now, the DOJ's policy was to wait until an election had been certified before publicly launching any investigation into credible claims of election fraud so as not to influence the results. But Barr called that approach "passive and delayed" and said it could "result in situations in which election misconduct cannot realistically be rectified," according to the memo.

Hours after the memo was released, the DOJ's longtime election crimes chief Richard Pilger resigned from that post in protest, signaling what former Public Integrity Section trial attorney Lauren A.B. Bell called "a breaking point" in the morale of many career prosecutors.

Line prosecutors considered Pilger to be "an institution at the Public Integrity Section," and for him to quit the election crimes post is "a sign that there's something wrong," according to Bell, now a partner at Boies Schiller Flexner LLP.

Barr's memo is the latest in a series of unusual moves that have called into question the DOJ's independence from politics, and could put some prosecutors in a precarious position, Bell said.

"Prosecutors in those [battleground] states are going to now be viewed as politically motivated prosecutors," she said. "The noninterference policy was implemented precisely so that DOJ could maintain its credibility when it was called on to investigate political events and campaigns. Those types of investigations are always fraught with an appearance of possibly being politically motivated, and that's why this policy helps protect the line prosecutors and DOJ as an institution."

"It's disheartening that DOJ's reputation for fairness and impartiality that it spent decades earning is now going to be hurt by this memo," Bell added.

The memo came as President Donald Trump has refused to concede the election to former Vice President Joe Biden, repeatedly claiming without evidence that the outcome was tainted by voter fraud. Trump's campaign has launched what he's called "tremendous litigation" in battleground states, but his legal efforts have been largely unsuccessful.

While Barr wrote in his memo that prosecutors could pursue "clear and apparently-credible" allegations of voting irregularities that might impact the outcome of the presidential election, he said it is "equally imperative" that they not initiate inquiries based on "specious, speculative, fanciful or far-fetched claims."

Despite those cautiously worded caveats, former Florida state prosecutor Melba V. Pearson said the message is clearly "another instance of the AG going lockstep with his master," indicating the further erosion of the DOJ under the Trump administration.

"It's really disgusting that we've gotten to this place where the institutions we value and that uphold this country are just being dismantled brick by brick under our noses," said Pearson, now the policy director for the Center For the Administration of Justice at Florida International University.

The memo prompted the Voter Protection Program's bipartisan advisory board, which includes former Massachusetts Gov. Bill Weld, former Deputy Attorney General Donald Ayer and former Assistant FBI Director Greg Brower, to speak out Tuesday.

"The voters decide the winner in an election, not the President, and not the Attorney General," the board said in a statement. "We have seen absolutely no evidence of anything that should get in the way of certification of the results, which is something the states handle, not the federal government."

Pearson said she suspects that U.S. attorneys around the country may have little incentive to seriously investigate what have so far been unfounded accusations of widespread election fraud.

While Pilger faced "very distinct pressure" as director of the elections crimes unit, most U.S. attorneys are expecting to be replaced when Biden takes office in January, Pearson said. Incoming administrations nearly always appoint their own people to top DOJ roles, and those prosecutors are unlikely to want to risk their reputations in the meantime, she added.

"The blatant, blunt reality is they're all going to be out of a job come February," she said. "My gut instinct is the majority of them are job hunting right now and not focusing on this type of investigation, especially if they don't think their state is in play."

It's worth paying attention to what prosecutors do in swing states that voted for Biden, such as Pennsylvania and Wisconsin, where they may attempt to pacify Barr and "go along to get along," Pearson said. But overall, they're probably more focused on self-preservation at this point, given that most Republicans hear the "drum beat" of defeat whether or not they're willing to acknowledge Biden's victory publicly, she added.

Any forthcoming investigations also may not help Trump in his ongoing legal assault on election results in several states.

Pearson said the authorization for investigations could be seen as a fishing expedition for evidence supporting Trump's allegation. She doesn't see many of his cases going far, given that some have already been dismissed.

Election fraud probes generally take several months to perform "correctly" and may not even be completed in time to potentially help the president, according to Bell.

Barr's memo also ignores the existing mechanism for such inquiries, in which the FBI and local U.S. attorney's offices consult with the DOJ's Public Integrity Section and quietly interview witnesses alleging voting irregularities, Bell said. All of that is done behind closed doors, and Barr's willful disregard for the policies in place only serves to lend credibility to what have so far been baseless claims of fraud, she said.

Regardless of its practical outcome, Barr's decision to allow such investigations before the election results have been certified could have lasting effects.

"By issuing a memo saying these investigations should be happening, it implies that there is something to investigate," Bell said. "That is designed to undermine people's belief that the election happened fairly, and that's the danger in this."

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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