On August 13, a day after President Donald Trump again charged that Democrats’ efforts to expand mail-in voting due to the pandemic will create “the greatest rigged election in history,” U.S. Attorney General William Barr too made unfounded and conspiratorial-sounding claims. Barr told Sean Hannity on Fox News that Democrats’ drive seeking to expand mail-in voting could raise “serious questions about the integrity of the election,” were “grossly irresponsible,” and “reckless.”
That was hardly the first time they seemed to agree. In a July House Judiciary hearing and in a June interview with Fox News, Barr joined Trump in his monthslong and spurious attacks on voting by mail. He told Fox that voting by mail “absolutely opens the floodgates to fraud,” adding, without evidence, that “right now a foreign country could print tens of thousands of counterfeit ballots.”
Citing Barr’s words in one tweet, Trump then upped the ante: “MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES,AND OTHERS. IT WILL BE THE SCANDAL OF OUR TIMES!”
“Barr has admitted he has no evidence of widespread mail-voting fraud,” former federal prosecutor and former senior official at Homeland Security Paul Rosenzweig told me. “All he is doing is trying, unsuccessfully, to give Trump a basis for challenging the election. This is not the job of the Attorney General.”
Barr has violated numerous fundamental norms as attorney general, using his sweeping powers to carry out actions and judgments that are politically beneficial to the president’s reelection campaign. Many former Justice Department officials say Barr’s actions and public statements are increasingly aimed at helping Trump’s political interests and friends, leading to an unprecedented politicization of the department by the nation’s top law enforcement officer. A DOJ spokesperson did not respond to a request for comment on Barr’s actions and views for this story.
Now, with under 70 days to the presidential election, the actions that pose the most consequential harm are those that threaten a free and fair election — especially Barr’s work to undermine, rather than uphold, voting rights and to publicly accuse Trump’s enemies.
“Barr has utterly and completely trashed the norm of DOJ separation from politics,” Donald Ayer, a former deputy attorney general who served in the George H.W. Bush administration just prior to Barr’s first stint as AG, told me. “For the last several months, Barr has been fully engaged in using the tools of the Justice Department primarily for the purpose of advancing the president’s election prospects.”
Barr’s attacks on mail-in voting seem to be well-choreographed with the president. “It has been repeatedly shown that voter fraud is rare, yet Barr has continued to spew Trump’s false claim that mail-in voting is riddled with fraud,” Gerry Hebert, who spent 21 years working in the DOJ on voting rights issues, told me.
Hebert also stressed that Barr’s Justice Department has failed to protect voting rights. “There have been literally dozens of lawsuits all over the country to protect voting rights during the pandemic, so that voters don’t have to choose between voting and putting their health at risk. The Barr DOJ hasn’t yet weighed in on any of those cases.”
Specifically, the Justice Department has failed to pursue pending court cases that seek to stop discriminatory voting practices, including ones that happened in 2018, 2019, and 2020, and these or similar cases could come up before November, say former DOJ lawyers. It has abstained from taking legal action in cases of voter purges that occurred in Georgia and Ohio in both 2018 and 2019. Likewise, the DOJ has been missing in action in cases involving polling place reductions during this year’s primaries in Wisconsin, Kentucky, and Georgia. And it has failed to take action in cases stemming from too few — or error-prone — voting machines in minority neighborhoods.
In the past, attorneys general have used their powers to send personnel to monitor polling sites to ensure there are no voting irregularities involving civil rights abuses; the Department of Justice did this in 2016. Critics fear now that Barr may heed Trump’s suggestions last week — when he railed, without evidence, that he could only lose due to a “rigged” election by Democrats and called for deploying law enforcement personnel — and send monitors who would intimidate voters, suppressing the overall vote
“It has been repeatedly shown that voter fraud is rare, yet Barr has continued to spew Trump’s false claim that mail-in voting is riddled with fraud.”
“We will have to see whether Barr is prepared to implement what Trump wants, which appears to be harnessing law enforcement agencies to participate in an aggressive voter suppression effort,” former DOJ inspector general Michael Bromwich told me. “Neither Trump nor Barr has any legal authority over sheriffs, police departments, or state AGs, but Trump has now green-lighted rogue law enforcement elements around the country to undertake such efforts as voter suppression vigilantes. An attorney general who believed in the rule of law and democracy would come out four-square against such tactics.”
What’s more, Barr’s DOJ may wind up defending the U.S. Postal Service against lawsuits that were filed in mid-August by several state attorneys general challenging cutbacks in services that have been made in recent months that threaten to hurt the ability of the USPS to handle the greatly expanded volume of mail-in ballots expected this year. Barr’s DOJ could also back lawsuits by the Republican National Committee that have been filed in a few swing states, including Pennsylvania and Nevada, to curb mail-in voting plans by the states.
Barr’s commitment to ensuring election integrity became more suspect when the attorney general was asked at the House Judiciary hearing if the president could legally delay the election. Barr did not simply answer no but left the door open by replying evasively that “I’ve never been asked that question before” and “I’ve never looked into that.”
“Even a first-year law student would know the answer to that question,” Hebert quipped.
An October Surprise
Barr may be on the verge of deploying another unusual and norm-busting tactic. In May 2019, Barr launched an inquiry when he tapped Connecticut federal prosecutor John Durham to investigate the origins of how FBI and CIA officials in 2016 began “Operation Crossfire” looking at Kremlin meddling in the elections and possible collusion with Trump’s campaign.
The Durham inquiry was also spurred by Trump’s disdain for special counsel Robert Mueller’s two-year probe that had just concluded that Russia interfered in 2016 in “sweeping and systematic” ways to help Trump win — a verdict that Trump has used to create a dark picture of a “deep state” of foes seeking to destroy his presidency. Now, critics fear that Barr will try to release a report on Durham’s probe this fall that Barr can spin to placate Trump — as the AG did by downplaying key parts of the Mueller report — fueling a campaign attack against Democrats. In his recent judiciary testimony, Barr was pressed on if and when a report on Durham might be released: Barr flatly declined to rule out its release prior to the elections, despite a Justice Department tradition of not making public any information that could sway an election 60 to 90 days before. “Any report will be, in my judgment, not one that is covered by the policy,” he told the Judiciary Committee about his position.
“We’re not going to do anything for the purpose of affecting the election, but we’re trying to get some things done before the election.”
Barr has also made several public comments suggesting that the Durham probe has found some damaging and surprising new information. In his July House testimony, Barr called the FBI probe of possible Trump campaign collusion with Moscow “bogus” and in a Fox news interview, he charged the FBI with trying to “sabotage the presidency.” Barr’s stream of comments fit with his attempts to undercut the Mueller report and bolster Trump’s barrage of charges that the Russia investigations were a “hoax,” while touting what Durham in tandem with Barr is pursuing.
“Given his past misrepresentations of the Mueller report, the American people should look very carefully and very skeptically at absolutely anything Barr announces this year,” Justin Levitt, a former DOJ prosecutor who now is a law professor at Loyola Law School in Los Angeles, told me. Barr could take Durham’s findings and spin them as well, to make them seem more damning of the early Russia probes by the FBI and CIA, say former DOJ officials.
“Barr’s active promotion of Durham’s investigation has already discredited it in the eyes of many,” Bromwich told The Intercept. “Any criminal charges or public report released close in time to the election — generally defined as within 60 days — would be viewed with great skepticism.”
Other former DOJ officials went farther. “It seems inevitable that Barr will attempt to unleash an October surprise through the Durham investigation,” Rosenzweig, the former prosecutor, told me.
But Trump’s hopes of big charges before the election seem unlikely, say former DOJ officials, who note that a recent 1,000-page bipartisan report from the Senate Intelligence Committee went further than Mueller in providing significant new evidence of numerous contacts between Trump campaign officials and Russians; according to the report, Konstantin Kilimnik, an active Kremlin military intelligence officer had extensive contacts with Trump’s campaign chair Paul Manafort, who was convicted on eight counts of financial and tax crimes.
Nevertheless, there are mounting signs that Barr and Durham are moving forward on their inquiry — and that Barr may be under pressure from Trump.
Barr has said that Durham, with whom he has reportedly worked closely (including making a trip to Italy last year to do interviews), is making progress and seems intent on digging into other possible misconduct involving FBI and CIA officials; ex-CIA Director John Brennan was reportedly interviewed this month for eight hours but has been told he’s not a target.
On August 12, Barr coyly told conservative talk-radio commentator Buck Sexton that “we’re not going to do anything for the purpose of affecting the election, but we’re trying to get some things done before the election.”
The next day, Trump told Fox News that “Bill Barr has the chance to be the greatest of all time. But if he wants to be politically correct, he’ll be just another guy.” And then, on August 14, it was announced that an ex-FBI lawyer, Kevin Clinesmith, who was involved in one part of the 2016 inquiry would plead guilty to a charge of falsifying a document. Clinesmith formally entered his plea the following week.
Law and Order
Finally, as Trump’s law-and-order mantra has become a central campaign motif, Barr’s crackdown on largely peaceful protests in D.C., and authorizing federal agents to help fight violent crime in several cities run by Democrats look like ominous campaign ploys and possible harbingers of what’s ahead before November. Dubbed “Operation Legend,” the program began in Kansas City, Missouri, on July 8 and was soon after launched in eight other cities run by Democrats including Chicago; Albuquerque, New Mexico; Cleveland; and Detroit, ostensibly to reduce violent crime with a key focus on gun violence.
Some former DOJ officials were taken aback last month when in an unorthodox move for an attorney general, Barr joined Trump at the White House for a campaign-style announcement about Operation Legend’s expansion to several cities run by Democrats, including Chicago. Chicago Mayor Lori Lightfoot dubbed the event a “political stunt.”
Barr’s leading role in Operation Legend at times overlaps — and seems to be inspired by — a conspiratorial, far-right, and dystopian vision of urban chaos he has linked to Black Lives Matter protests, which the attorney general alleged in a Fox interview this month with Mark Levin. Barr labeled some Black Lives Matter protesters “bolsheviks” engaged in “urban guerrilla warfare,” driven by a “lust for power.”
Ex-prosecutor Rosenzweig was stunned by Barr’s comments to Levin. “They’re flat-out racist, dogwhistle, white supremacist nonsense,” he told me.
As criticism of Operation Legend mounted, Barr held a press briefing on August 19 in Kansas City to trumpet some 1,500 arrests in nine cities to date, including about 217 facing federal charges, according to Barr. Barr’s explanation for why there’s been a recent uptick in violent crime provided new signs that the program has a distinctly political edge: At his briefing, Barr cited a few possible causes such as “pent-up aggression” due to local and state coronavirus quarantine orders, the “defund the police” movement, and “premature release of violent criminals by the courts” during the pandemic.
Just where the DOJ may opt to expand the program before the election isn’t clear, but some former Justice Department lawyers fret that it will be increasingly aimed at cities in swing states.
What’s more, former DOJ officials note that it’s highly unusual for the feds to impose their will in cities and states without being invited initially, which has been the case so far in most of the urban areas targeted by Operation Legend — a trend that suggests just how political the DOJ campaign has been.
DOJ Inspector General Michael Horowitz in late July announced an inquiry that will examine how federal law enforcement, under Barr’s general direction, forcefully removed protesters from the area near Lafayette Square in Washington, D.C., right before Trump’s photo-op holding a Bible upside down at a nearby church. But the results of that inquiry are likely to take months, if not years.
“Barr can’t achieve his mission of creating an unrestrained president if Trump isn’t reelected.”
“Barr has proven his loyalty to the president at any cost,” Rep. Eric Swalwell, who sits on the House Judiciary panel that grilled Barr in July, told The Intercept. “He’s shown a willingness to protect the president’s friends and to punish his enemies” — including dropping the DOJ’s case against former national security adviser Michael Flynn, despite his twice pleading guilty to lying to the FBI about sanction talks he had with Russia’s ambassador before Trump took office. Barr also intervened to suggest a lesser punishment for Trump’s long-time friend Roger Stone who was convicted on seven counts including lying to Congress and witness tampering; but Trump commuted his three-year prison sentence this summer to keep Stone out of jail.
Swalwell noted that among those Barr punished was Geoffrey Berman, the former U.S. attorney for the Southern District of New York, who Barr, in tandem with Trump, suddenly forced out in June on dubious grounds. Berman’s office has been investigating a few high-profile cases involving Trump allies, including Trump lawyer Rudy Giuliani. The Southern District has also been involved in a long-running probe into Trump’s inaugural funding, and it handled the successful prosecution of one-time Trump lawyer Michael Cohen who implicated Trump in campaign finance violations involving hush money payments to porn star Stormy Daniels to silence her in 2016 from discussing their affair years earlier.
Ayer, who has known Barr for almost four decades, stressed that Barr’s litany of actions to help Trump’s political agenda seem rooted in Barr’s long-standing advocacy of expanding presidential powers. “Barr has been committed for a very long time to a concept of the presidency that is virtually all-powerful,” Ayer told me last year. In many ways, Barr’s concept of an all-powerful presidency seems to fit well with Trump’s own oft-expressed absolutist view of his powers, Ayer added. “Barr can’t achieve his mission of creating an unrestrained president if Trump isn’t reelected.”