In a memo to federal prosecutors Monday night, Attorney General William Barr gave the go-ahead for investigations into “specific instances” of voter fraud.
But he also warned that “specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries.”
Richard Pilger, head of the election crimes unit in the Justice Department Public Integrity Section, resigned in protest of the directive, while others fear the move could be laying the groundwork for a power grab.
For some, the tricky needle-threading by Barr comes as no surprise. He has been willing to intervene on behalf of President Trump before.
Barr’s letter to prosecutors is “unprecedented,” says Trevor Potter, founder and president of the nonprofit Campaign Legal Center and former chairman of the Federal Election Commission. He also served as general counsel to the late John McCain’s two presidential runs and describes himself as “historically Republican.”
Potter says that Pilger’s resignation shows him that career Justice Department employees think Barr’s directive is wrong.
“The reason for that is that elections are run at the state level, and there is no federal role here in the states determining who won,” he says. “So this is a departure from department policy.”
Potter notes that Barr’s letter authorizes federal prosecutors only to look into allegations of voter fraud; it does not command them to do so. He says Barr could have issued the directive because of pressure from Trump.
“It doesn't mean that they're going to come up with anything, and it certainly doesn't mean they would be large enough to affect the election result in any state,” he says.
He points to once such allegation in Nevada where the Trump campaign is arguing some 3,000 people voted illegally because they voted in that state’s election even though they had moved out of state. But many of those people were members of the military and college students who reside in Nevada but attend school out of state — all of whom can legally vote in Nevada, Potter says.
The bottom line is even if those allegations of fraud were true, those 3,000 votes would not be enough to change the outcome of Joe Biden’s win in Nevada, Potter says.
In Pennsylvania, the Trump campaign is alleging that Republican observers weren't allowed to get close enough to observe election workers counting ballots. That situation is a little different, Potter says, because it could go to the Supreme Court, and “it asks for the sort of relief we have never imagined out of a federal court in an election in this country.”
Overall though, Potter says he does not see any credible claims of voter fraud that could overturn the election. Trump’s goal is likely to blame election officials for alleged voter fraud, he says, so that a Biden victory will be viewed by his supporters as illegitimate.
“You are seeing the professionals of both parties, who are responsible for running elections and feel they did a remarkably good job in the middle of a pandemic with none of the disasters that were predicted, suddenly being attacked by ideologically motivated politicians with no evidence at all saying it's all fraudulent,” Potter says. “And that may be Trump's goal, but it is certainly not the goal of the professionals of both parties who run elections and rely on public confidence in their work.”
This segment aired on November 10, 2020.