William Barr and the DOJ’s investigation of voter fraud in the presidential race

Politico has a report today about how then-attorney general William Barr upset career Justice Department employees by ordering the Justice Department to investigate claims of voter fraud and how the investigation he ordered “debunked” one such claim relating to Georgia. Ed Morrissey speculates about Barr’s motives in this affair.

Here is my understanding of the Justice Department’s probe of election fraud claims in the period after the November 2020 election:

Almost immediately after it became clear that he would be deemed the loser of the election, Donald Trump began demanding that Barr investigate voter fraud. Barr agreed to do so.

Barr issued a memo instituting the investigation. He designated Richard Donoghue, a top DOJ official in whom he had a high degree of trust, to lead the investigation.

Not surprisingly, career DOJ personnel opposed the investigation. This comes through clearly in Politico’s report.

Nonetheless, Barr and Donoghue pushed the FBI and other relevant personnel to proceed.

By the beginning of December, Barr had concluded that no evidence of voter fraud sufficient to influence the outcome of the election had been uncovered. He told Trump so. He also told Trump that the president was being poorly advised by the people pushing voter fraud allegations.

Trump didn’t take this news/advice well. It’s likely that he berated Barr.

The discouraged attorney general decided to leave the Department early. Like his berated predecessor Jeff Sessions, Barr left with dignity and class, choosing not to criticize the president.

At least two questions arise from this broad outline. The first is: Did Barr play the investigation straight? My information is that, yes, Barr acted in good faith, neither tilting the investigation in favor of finding fraud nor covering up or averting eyes from it.

The second question, though is: Did the investigation truly “debunk” allegations of significant, potentially outcome determinative voter fraud? Did it support the conclusion that fraud was an insignificant factor in the outcome of the election?

The Politico story centers on one allegation of fraud from Georgia. This was an allegation the DOJ focused on because it was drawing lots of attention at the time. The investigation did, indeed, debunk that allegation.

But in the time frame involved, I don’t see how the DOJ could have fully investigated fraud claims from all of the key states in the election, especially given the lack of enthusiasm, if not resistance, on the part of career staff.

Thus, I don’t believe Barr was in a position in early December fairly to say that the election wasn’t stolen, and I don’t understand Barr to have said that. I understand him to have said only that the DOJ hadn’t found evidence of fraud widespread enough to influence the election’s outcome.

But this statement was a meaningful evaluation of the election’s fairness only to the degree that the investigation was comprehensive. I don’t know how comprehensive the investigation was, but I see no way it could have been thorough enough to put a full seal of approval on the result.

In saying this, I don’t mean to criticize Barr. He didn’t have the time, the resources, and (probably) the level of internal cooperation needed to give the election a full thumbs up or thumbs down.

It’s important to note that our system isn’t designed to enable a review that can lead to a full thumbs or thumbs down in close elections. The system is designed to install a winner in less than three months following election day. It’s not designed to accommodate endless challenges and the running to ground of every potentially meaningful fraud claim in every state that played a key role in the outcome.

Barr is a realist. My guess, for what it’s worth, is that Barr understood early on, as most intelligent people did, that even if the election had been “stolen,” there was probably no way to prove it in time to change the outcome. If an investigation showed otherwise — if it revealed instances of fraud that could form the basis for a challenge that might succeed — Barr would act accordingly. When the investigation didn’t reveal such instances, it confirmed Barr’s initial sense that the initial outcome would be the final outcome.

Later in December, Jeff Clark, one of the assistant attorney generals, reached a different conclusion. He came to believe that there was enough evidence of fraud to keep hope alive.

Jeff Clark is an outstanding lawyer. Maybe he found things that others at DOJ missed. Maybe he evaluated the same evidence more astutely than everyone else.

However, at an early January “showdown” meeting with Trump at which Clark was present along with Jeff Rosen (who had succeeded Barr) and Richard Donoghue, Clark’s position did not prevail. But this might have had more to do with threats by Rosen, Donoghue, and other high-level DOJ political appointees to resign than with the merits of fraud claims.

In any case, with Inauguration Day quickly approaching, peaceful options for preventing Joe Biden’s ascension were severely limited, if not non-existent.

Since Biden’s inauguration, there has been more time to run voter fraud allegations to ground. As far as I can tell, the evidence doesn’t support Trump’s claim that his loss was attributable to voter fraud, although this remains a possibility.

I agree with John Hinderaker that we may never know for sure. We still don’t know whether Richard Nixon’s loss to John Kennedy in 1960 was attributable to voter fraud, and we probably would not have found out even if Nixon hadn’t let the matter drop.

My view is that Trump’s loss has more to do with Democrat machinations prior to the voting than with fraud in the counting of votes. In key states, Democrats re-wrote election laws and voting procedures in their favor.

They were able to this with the help of Democratic state attorneys general and through the wonders of forum shopping. The Dems would file suits, the attorneys general would agree to consent decrees, and the hand-picked judges would approve them.

The Justice Department was monitoring these developments, but lacked jurisdiction to stop them. Federal voting rights give the DOJ power to become involved when there are civil rights violations, but what the Dems were doing did not violate federal civil rights laws, which are designed to prevent racial discrimination. The DOJ can send in people to monitor voting and it did. However, this effort could do nothing to overcome the effects of the changes to voting procedures the Dems had finagled.

Could Trump and his reelection legal team have done a better job of preventing the finagling? I don’t know. But to the extent that Trump lost the election due to voting irregularities, I believe he lost it on this front, not later on.

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