Honig: Don’t buy Bill Barr’s latest story about the Big Lie

Opinion by Elie Honig

William Barr’s image rehabilitation tour has begun. Don’t buy it.

Despite Barr’s belated, post-election resistance to former President Donald Trump’s delusional claims of massive voter fraud — which Barr eagerly amplifies in self-aggrandizing fashion in a new interview he granted to The Atlantic — make no mistake: Barr bears as much responsibility as anybody other than Trump himself for spreading the malicious lie that ultimately resulted in the January 6 Capitol insurrection.

Barr spoke to the Atlantic about his post-election turnabout, which culminated in his December 1, 2020, public statement to the Associated Press that “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.” Barr tells of how he stood up to Trump, invoking Trump’s wrath during the frantic post-election weeks when Trump tried desperately to overturn the election’s results.

But Barr conveniently omits the crucial fact that, for months before his endgame turnabout, he had been relentlessly parroting and amplifying Trump’s most dangerous lies about election fraud throughout the runup to the November 2020 election.

As I write in this adapted excerpt from my new book “Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” it became clear from the spring of 2020 that the Covid-19 pandemic would cause record numbers of voters to cast their ballots by mail, which likely would favor then-Democratic nominee Joe Biden. Trump promptly launched a Twitter blitz seeking to discredit mail-in ballots: “Tremendous potential for voter fraud,” ” ‘RIPE for FRAUD’, and shouldn’t be allowed,” “Mail in ballots substantially increases the risk of crime and VOTER FRAUD!” and the like, endlessly. “No mail ballots, they cheat,” Trump proclaimed at a press conference purportedly about his administration’s Covid-19 response. “Okay, people cheat. Mail ballots are a very dangerous thing for this country because they are cheaters.”

Barr quickly picked up on the president’s escalating rhetoric. In a June 2020 interview with NPR’s Steve Inskeep, Barr offered up a familiar-sounding rant about the looming threat of massive voter fraud in the 2020 election. Barr opined that mail-in ballots present “so many occasions for fraud there that cannot be policed. I think it would be very bad.” He also raised “the possibility of counterfeiting.” But when pressed on whether he had evidence to support this claim, he responded, “No, it’s obvious.”

And in congressional testimony weeks later, in July 2020, Barr tried and failed again to conjure the demon of massive voter fraud. After he pushed the notion that foreign countries might generate fraudulent mail-in ballots, Democratic representative Mary Gay Scanlon of Pennsylvania pushed back, sensibly asking, “But, in fact, you have no evidence that foreign countries can successfully sway our elections with counterfeit ballots, do you?” “No, I don’t,” Barr conceded, before adding this non sequitur of a rejoinder: “But I have common sense.”

Let’s take a moment to appreciate the audacity of Barr’s responses. When asked (twice) for evidence of dramatic claims he had just made, he conceded that he did not have any such support, but then decreed that his conclusory assertions were “obvious” and “common sense.” How does that work? Aren’t things that are “obvious” and “common sense” the easiest to prove? If I told you that the sun sets at the end of every day—well, that’s obvious and, hence, eminently provable. I’m trying to envision what would have happened if, back when I was a prosecutor at the Southern District of New York, I had made an important factual assertion about a case, a judge had asked me for evidence to support it, and I had replied, “No—but it’s obvious.” I’m confident it would’ve been ugly.

Barr’s public assertions about voter fraud were, first and foremost, just plain wrong. As the director of MIT’s Election Data and Science Lab put it with refreshing bluntness in NPR’s own postmortem on the Barr interview, “He was talking about very specific things, and they were nuts.” Another NPR recap quoted election law experts who derided Barr’s theories as “preposterous” and “false.”

For more proof of the paucity of mail-in voting fraud cases, just look at Barr’s Justice Department. It is a federal crime to commit fraud involving voting or elections. DOJ’s own statistics break down its annual prosecutions according to subject matter. For fiscal year 2019 (which included the November 2018 midterm elections, in which more than one hundred million Americans voted), DOJ under Barr charged more than 69,000 federal criminal cases against over 87,000 total defendants. Care to guess how many of those cases involved fraud relating to mail-in ballots? Well, Barr certainly never pointed to one publicly, and heaven knows that if he had had a good poster child to support his claims, he’d have used it. Nor did DOJ charge any such cases during the run-up to or immediate aftermath of the 2020 election.

Indeed, DOJ’s stats don’t even list voter fraud or election fraud as a recognized category of offenses—though the statistics do list categories as narrow as Corruption—Pension Benefit, with a grand total of three cases charged during the year. Yet, in the accounting by Barr’s Justice Department of its own caseload, voter fraud doesn’t even rate its own line item, or even a mention.

Of course there have been instances of ballot fraud, but they are so infrequent that they hardly even register mathematically. According to a study by the Washington Post and the nonprofit Electronic Registration Information Center, only 0.0025% of all votes cast in 2016 and 2018 were even potentially fraudulent. That’s one instance of potential fraud for approximately every 40,000 ballots cast. Not surprisingly, given this paucity of cases, FBI director Christopher Wray confirmed in September 2020 congressional testimony that “[n]ow, we have not seen, historically, any kind of coordinated national voter fraud effort in a major election, whether it’s by mail or otherwise.”

None of these facts deterred Barr in his pre-election quest to make the fraud narrative stick. By the time he sat down for a September 2020 interview with CNN’s Wolf Blitzer, Barr had to know the mail-in ballot question was coming. And it seemed, for a moment, that he had for once armed himself with some actual proof. Barr proudly declared that “[e]lections that have been held with mail have found substantial fraud and coercion. For example, we indicted someone in Texas, 1,700 ballots collected from people who could vote, he made them out and voted for the person he wanted to. Okay?” This was a serious and alarming claim, but Barr did not expand on it.

He then ran out of ammo, quickly. Blitzer asked, “During your tenure as attorney general of the United States, how many indictments have you brought against people committing voter fraud?” Barr responded, “I couldn’t tell you off the top of my head, but several I know of.” When Blitzer asked for specifics—remember, Barr had just said “several I know of”—Barr fell back: “Well, I don’t know. I don’t know how many we have. I know there are a number of investigations right now.” So, Barr followed his claim of “several” indictments that “I know of”—Blitzer specified “indictments”—by admitting that (1) he didn’t know how many, and (2) he was actually talking about investigations, not actual criminal charges. Big difference.

Still, it seemed, momentarily, that Barr had offered up at least one piece of compelling evidence in the Texas case, involving, he publicly claimed, 1,700 ballots. But after the interview ended, his claim was quickly exposed as wildly misleading. First, despite Barr’s proclamation that “we” indicted someone, it turns out that there was no such federal prosecution by DOJ. Rather, Barr was referring to a state-level prosecution in Texas. This was no slip of the tongue. Take it from somebody who has worked on both the federal side and the state side: no federal prosecutor ever refers to a state-level prosecution as something “we” did (or vice versa).

It also turned out that Barr wildly mischaracterized what the case was actually about. “That’s not what happened at all,” the former Texas state prosecutor on the case bluntly assessed in reference to Barr’s outrageous claim. In fact, the case involved a far smaller number of ballots. Another former prosecutor who oversaw the Texas case said the initial investigation focused on “potentially 1,700 fraudulent ballots, but we did not uncover that at all.” He explained, “We actually thought there was voter fraud initially, and we couldn’t find it except that little tiny case” involving a single ballot. According to Barr: 1,700 ballots. According to reality: a single ballot.

The Justice Department’s public relations apparatus sprang into blame-shifting mode. DOJ’s official explanation for Barr’s embarrassing performance: “Prior to his interview, the Attorney General was provided a memo prepared within the Department that contained an inaccurate summary about the case which he relied upon when using the case as an example.”

Of course, we don’t know how much of the blame truly fell on the unnamed staffer and how much was owed to Barr’s own oft-displayed tendency to exaggerate in service of Trump’s public claims about voter fraud. Also: note how Barr’s errors, here and elsewhere, always went the same way—in favor of overplaying the political narrative that Trump sought to promote.

Just weeks after Barr’s flubbed effort to lend some credence to Trump’s narrative about massive mail-in ballot fraud, the Justice Department gave it another go. This time, the US attorney for the Middle District of Pennsylvania issued a bizarre press release announcing an ongoing investigation into “discarded” ballots. This inquest, according to DOJ’s initial public statement, had uncovered nine discarded military ballots, all of which had been cast for Trump.

Right off the bat, the announcement raised red flags. Anyone who has spent a day working in the Justice Department, or any prosecutor’s office, knows it is a core principle (on the books and informally) that you never speak publicly about a pending investigation. The Justice Manual provides specifically that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations,” subject only to very rare exceptions. At the SDNY, I was so well trained that when I’d get an occasional call directly from a reporter, I’d reflexively intone, “No comment. Call the press office” (which, in turn, would second my “No comment”).

The reasons for this policy are fundamental, Prosecution 101 stuff. Public disclosure of a pending investigation undermines the secrecy and efficacy of the investigation itself. It’s a bright-line rule, firmly grounded in basic concepts of law enforcement and justice, and it’s quite easy to apply. Just don’t make a public statement about a pending investigation. Done and done.

Yet, just six weeks before a general election, the Justice Department flouted its own policy by issuing a press release confirming the Pennsylvania ballot investigation. Worse, DOJ publicly dished on the details, even specifying that all the ballots at issue had been cast for Trump—a nugget that would be irrelevant to any criminal case but that was quite handy to one of the candidates.

Beyond the impropriety of issuing this kind of a press release, the Justice Department, yet again, got its facts wrong. In another embarrassing walk back, DOJ issued a “Revised Statement,” amending its numbers from nine Trump votes down to seven (again, the accounting errors always seemed to go one way). And the alleged conduct, upon further examination, was found to have been more bureaucratic than sinister. The investigation reportedly focused not on partisan election officials sneaking Trump ballots into garbage cans for electoral advantage, as Matthew Broderick’s character does in the movie “Election.”

Rather, some voters apparently had mistakenly sent in ballots using the envelopes designated for ballot requests. Election workers opened those envelopes, expecting to find ballot requests, but instead found actual filled-in ballots, which were rendered invalid under state rules. This was nowhere nearly as evil, or even intentional, as originally advertised.

Now, why would Barr’s Justice Department break protocol in this one particular case? And why would prosecutors specify in the press release that some (shifting) number of the ballots in question were for Trump? Could it be because it happened to lend support—flimsy support, but something—for Trump’s election fraud narrative? Barr answered that question himself when he briefed Trump, in person, on the piddling investigation of plainly noncriminal conduct.

Sure enough, White House chief of staff Mark Meadows, Press Secretary Kayleigh McEnany, and Trump himself all jumped on the Justice Department announcement within hours of its issuance, citing it as an example of fraud run amok—breach of DOJ policy and factual inaccuracies be damned.

The Justice Department, not surprisingly, never brought criminal charges in the Pennsylvania case that it publicly touted. It never even filed a civil action, which requires less proof than a criminal case. It never filed anything on the case at all, other than an incorrect press release that served as fodder for the baseless conspiracy theories of Trump and his enablers.

In fact, DOJ’s announcement eventually became ammunition for Trump’s effort to contest the results of the 2020 election. In a federal court filing in Pennsylvania seeking to prevent certification of the election results, Trump’s legal team cited the DOJ press release about the purportedly discarded ballots, pointing to the announcement itself as evidence of widespread irregularity and fraud. Remember: DOJ’s original press release was factually wrong, and the investigation never resulted in criminal charges or any other legal action—but the mere existence of the Justice Department announcement propped up in a tangible way Trump’s efforts to overturn the election results.

The Pennsylvania ballot announcement broke not only the long-standing Justice Department rule and practice against commenting publicly on pending investigations, but also the general prohibition on announcing political or election-related cases shortly before an election. But, as to the latter point, Barr quickly came up with an ingenious solution: just change the rules.

Two weeks after the Pennsylvania fiasco, the Justice Department issued new guidance carving out a convenient exception: no political or election-related announcements, as usual — except where the investigation involved conduct by federal postal workers or military personnel.

Just days later, New Jersey federal prosecutors announced the indictment of a mail carrier who had discarded more than 1,800 pieces of mail, including 99 ballots. The New Jersey case didn’t quite fit the Trump-Barr narrative about massive fraud. The discarded ballots were blank, on their way out to voters, not filled in and on their way back to election officials. And the conduct smacked less of fraud than of the “Seinfeld” episode in which Newman, the lazy postal carrier, dumps crates of mail in a storage locker and relaxes rather than making his appointed rounds. Nonetheless, fodder is fodder: Trump immediately retweeted an article about the New Jersey case and added his own, one-word exclamatory comment: “Rigged!”

Barr’s endgame turnaround on the election fraud issue isn’t even a case of “too little, too late.” It’s worse than that. Barr himself used his lofty perch as attorney general to lend fuel to Trump’s desperate election fraud narrative during the crucial months leading up to the November 2020 election. He debased himself, and the Justice Department as an institution, in service of a false and politically motivated agenda that ultimately resulted in one of the darkest days in our nation’s history.

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