Despite his apparent admissions in private that there is no evidence of widespread fraud in U.S. elections, Attorney General William Barr on Monday authorized Department of Justice prosecutors to investigate "substantial allegations" of irregularities, should they exist, before final results are certified.
Hours later, Richard Pilger, the career official at the agency who oversaw voter fraud investigations, resigned in protest.
In a narrowly worded memo, Barr authorized U.S. attorneys to look into "specific instances" of possible fraud. At the same time, he cautioned that "specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries."
"Given that voting in our current elections has now concluded, I authorize you to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions," Barr wrote.
The new guidance allows U.S. attorneys to skirt Pilger's office and go directly to Barr, bypassing a measure in place to safeguard the department against potential politicization.
"Having familiarized myself with the new policy and its ramifications, I must regretfully resign from my role as director of the Election Crimes Branch," Pilger wrote in an email obtained by The New York Times.
So far, officials have not substantiated any allegations of voter fraud with the potential to impact the outcome of the election. As of Sunday, the Trump campaign was 0 for 11 in its lawsuits targeting elections administrators in four key states.
Barr's move raised alarms in the legal community. The memo broke with longstanding DOJ policy against investigating an election until after results have been certified. Those rules were designed to protect voters and election officials from being influenced by any appearances of wrongdoing.
"Public knowledge of a criminal investigation could impact the adjudication of election litigation and contests in state courts," the guidance says. "Accordingly, it is the general policy of the department not to conduct overt investigations."
Reaction among experts was mixed.
"It seems pretty qualified and measured. I'm not super-concerned," Jon Sherman, senior counsel at the Fair Elections Center, told Salon, referencing Barr's narrow phrasing. "If there are credible allegations of fraud, they are always investigated by law enforcement. But there aren't any such credible allegations as to any substantial chunk of ballots that could have an impact on the outcome, and Barr makes clear that such piecemeal investigations that could not possibly affect the outcome should wait until after the election results are certified."
Stephen Vladeck, professor of political science at the University of Texas School of Law, called Barr's decision "one of the more problematic acts of any attorney general in my lifetime."
"It would be problematic enough if Barr were reversing longstanding Justice Department guidance because of significant, substantiated claims of misconduct — that could presumably be handled at the local and state level," Vladeck told The Times. "But to do so when there is no such evidence — and when the president's clear strategy is to delegitimize the results of a proper election — is one of the more problematic acts of any attorney general in my lifetime."
A Politico-Morning Consult poll released on Monday found that 7 in 10 Republicans do not believe the presidential election was free and fair. Trump campaign surrogates and GOP elected officials have contributed to the instability by making baseless allegations of fraud and questioning the legitimacy of Biden's election.
Sen. Lindsey Graham, R-S.C., claimed to Fox Business' Maria Bartiromo on Sunday that 100 dead people had voted in Pennsylvania.
"But here's the one that gets me, six people registered after they died and voted. In Pennsylvania, I guess you're never out of it," Graham said, without providing evidence or specifying the party affiliations of the individuals.
On Monday, Barr visited Senate Majority Leader Mitch McConnell on Capitol Hill. He left without taking questions from reporters. Earlier that day, McConnell, who had remained quiet on Trump's allegations of voter fraud, came to the president's defense on the floor of the Senate.
"Our institutions are actually built for this," the Republican leader said. "We have the system in place to consider concerns, and President Trump is 100% within his rights to look into allegations of irregularities and weigh his legal options."
However, Barr has privately told officials that he saw no evidence of massive fraud, and most of the allegations brought this year by Republicans reflected isolated instances not indicative of larger systemic issues, according to The Times. Further, Barr has reportedly told individuals briefed on the conversation that any disputes should be settled in court via legal actions from campaigns.
Nonetheless, Barr has already authorized probes into allegations of voter ineligibility in Nevada and backdated mail-in ballots in Pennsylvania, despite the dearth of evidence behind those allegations.
Individuals close to the White House and the Trump campaign told the Associated Press and The Washington Post that the efforts were not serious attempts to override Biden's election but rather efforts to salve Trump's ego and secure his base's loyalty even in defeat.
"What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change," a senior Republican official told The Post. "He went golfing this weekend. 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."
"This is decades of lies about voter fraud hitting terminal velocity and a party that won't buck its leader," Sherman, of the Fair Elections Center, told Salon.
"Different people obviously have their reasons for engaging in this anti-democratic shadow play. But when push comes to shove, I think people will pull back from the brink of authoritarianism," Sherman added. "Failing that, I think the Supreme Court will prevent it."
"In fact, investigations, recounts and litigation could even be healthy: While none will change the outcome, they might help underscore the integrity of the election for people inclined to believe those incendiary lies about fraud," he said.