For decades, federal prosecutors have been told not to investigate electoral fraud in the last few months before an election for fear of reducing turnout or undermining confidence in the results. Now the Justice Department has lifted that ban weeks before the presidential election.
The move comes when President Trump and Attorney General William P. Barr put forward a false story that election fraud is widespread and potentially undermining Americans’ confidence in the election.
A Justice Department attorney in Washington said in a memo to prosecutors on Friday that they could investigate suspected election fraud before the votes are tabulated. This reversed a decades-old policy that largely prohibited such investigations from being conducted aggressively during election campaigns to prevent their existence from being publicized and potentially “deterring legitimate voting and campaigning activities”
The memo creates “an exception to general non-interference in electoral policy” in the event of suspected election fraud, particularly in the case of misconduct by federal government employees, including postal workers or military employees; Both groups transport postal ballot papers. The exception enables investigators to take overt investigative steps such as questioning witnesses, which were previously prohibited in such investigations until the election results were confirmed.
The move also allows prosecutors to make more of a spectacle of electoral fraud in the weeks leading up to the November 3rd vote. U.S. attorney in New Jersey, Craig Carpenito, on Wednesday promoted the arrest of a postal worker suspected of discarding mail, including dozens of ballot papers that were found and mailed back.
The New York Times checked parts of the memo. ProPublica reported details on Wednesday.
A long-standing standard in the Justice Department prevents investigators from taking action related to elections or candidates within a few months of election day, fearing that even the perception of law enforcement involvement could undermine confidence in the vote. Former FBI director James B. Comey was widely criticized in 2016 for announcing the bureau’s decision not to recommend charges in its investigation into Hillary Clinton’s email server, and the case 11 days before Mr. Trump’s upset Victory had reopened.
The Justice Department said the new memo was not a political act and that no political officer directed, prepared, or issued it.
“Career prosecutors in the public integrity division of the department’s crime department routinely send guidance to the field during election season,” said Matt Lloyd, a department spokesman. “This email was simply part of this ongoing process of providing routine guidance on electoral matters.”
Department officials also said that a professional lawyer in the crime department advised all U.S. attorneys over the summer as part of a broader electoral fraud briefing on the matter, and that the department has always recognized there were exceptions to the policy.
The new guidelines raised fears that Mr. Trump’s political candidates, led by Mr. Barr, would use the power of the Justice Department to support his re-election bid. Democrats, civil rights attorneys, and former division officials in the Republican and Democratic governments have been on alert this year for unusual policies by the division in service of the president’s relentless – and false – claims that pervasive fraud is undermining the United States’ electoral system.
In particular, they have been wary of breakthrough cases based on allegations of electoral fraud that generate more headlines than substantive charges. Republicans have tried for years to advocate the idea that there is an election fraud problem in the United States, although there is little evidence to back up their claims.
During Mr Trump’s presidency and re-election, Conservative efforts to detect electoral fraud accelerated. Shortly after defeating Ms. Clinton in 2016, he claimed millions of Americans voted for her illegally, and he appointed a loyalist to investigate. No evidence has ever been found to support Mr Trump’s claim. However, that hasn’t stopped him from repeating the allegations further, especially in recent months when he was campaigning.
Democrats, as well as electoral and legal experts, have said that if the president loses, Mr Trump and Mr Barr lay the foundation for the election to be rigged.
The Justice Department could “create a narrative of postal voting fraud in the absence of evidence so that Trump can contest election results if he loses,” said Joyce Vance, a former US attorney in Alabama under the Obama administration.
“They have told us that this is their strategy and we are watching how they implement it,” said Ms. Vance.
Wendy R. Weiser, director of the Democracy Program at the Brennan Center for Justice, said she didn’t think the justification for changing policy was warranted. “If you want to prevent wrongdoing that you are concerned about, you can remind people of the law and announce that they will prosecute violators to the fullest extent of the law,” she said. “That does not require an exception to this longstanding and sensible policy.”
Some campaign experts said the new policy on electoral fraud investigations following Mr Comey’s impact on the 2016 elections was a big change.
“In the past, the DOJ has tried not to take any action that could affect an election, such as bringing charges or announcing investigations that could affect elections,” said Richard L. Hasen, law professor at the University of California, Irvine.
He predicted the memo could lead to many more announcements, such as the highly unusual disclosure by a Pennsylvania state attorney last month detailing an open investigation into election fraud in nine discarded ballot papers. The revelation helped back up Mr Trump’s false claims that mail-in polls were fraudulent, although the state’s top election official later said the episode was “a terrible mistake” and “not a deliberate fraud”.
The announcement was unusual for both revealing an open investigation and disclosing that some of the voting papers for Mr Trump had been cast. According to experts, this was irrelevant to the investigation and helped fuel his unfounded attacks on mail-in polls.
The change in policy, said Mr Hasen, “encourages more of these announcements that, these little things, could be treated as evidence of tampering and then promoted at a higher level.”
Mr Barr also reiterated the president’s allegations about election fraud.
In recent weeks, the attorney general has also made allegations that have not been supported by evidence that a postal vote could lead to fraud and abuse. In an interview with CNN last month, he alleged that the Justice Department charged a man in Texas who collected nearly 2,000 ballots from people who could not vote and illegally cast them for the candidate of his choice.
After the Washington Post questioned the report, a department spokeswoman said there were no such charges and that Mr. Barr relied on a memo containing inaccurate information.
He has also said that he has no “empirical evidence” that postal ballot papers lead to mass fraud, but rather “common sense” evidence.
“I have no empirical evidence that these problems occurred on this scale,” he said during an event last month for Hillsdale College.
In an unusual insubordination, Massachusetts and Seattle prosecutors have publicly accused Mr. Barr of essentially working for the Trump campaign and cited his decision to intervene in cases against the president’s allies and heightened criticism of Mr. Trump on the campaign thrown against Black Lives Matter.
One of them, Michael Dion, wrote in a letter to the Seattle Times that Mr. Barr had turned the Justice Department “into a shield to protect the President and his henchmen.”
“Barr does these things because his goal is to protect his master, not the American people,” Dion wrote. A Justice Department spokeswoman declined to comment on the letters.
Nick Corasaniti and Jim Rutenberg contributed to the coverage.