On a day in August when President Trump promoted law enforcement efforts to fight election misconduct as part of his false narrative about rampant voter fraud, the Justice Department was already quietly at work on the issue.
In a memo to top prosecutors across the country earlier that day, the department loosened a decades-long policy intended to keep law enforcement from affecting election results. The policy had prohibited prosecutors from making headline-grabbing charges of election fraud in the run-up to an election.
The president’s remarks were one of many instances in which he has falsely asserted that widespread mail-in voting is rife with fraud.
A Justice Department spokesman, Matt Lloyd, said on Friday that career officials, not Mr. Trump’s political appointees, drove the policy changes.
“This email was simply part of that ongoing process of providing routine guidance regarding election-related matters,” said Mr. Lloyd, a spokesman for the department’s criminal division. “No political appointee had any role in directing, preparing or sending this email.”
But former Justice Department officials from both parties have warned that under Attorney General William P. Barr, the department is slipping into a partisan morass it had long sought to avoid, with implications for the public’s confidence both in independent law enforcement and in the November election.
“I’ve never seen anything like this before, and I was a federal prosecutor during Watergate,” said Stuart M. Gerson, an acting attorney general during President Bill Clinton’s first term and a former adviser to President George Bush. “The administration of justice is not supposed to occur with any political bias.”
All voter fraud is extremely rare, experts say, though slightly less rare in mail-in voting, which is expected to be used more heavily this year as voters try to avoid casting ballots in person because of the coronavirus pandemic.
For decades, Justice Department policy prevented voting fraud investigations in the weeks and months ahead of an election for fear that they could depress voter turnout or erode confidence in the results, or that the inquiry could itself become a campaign issue.
The shift to unleash prosecutors to investigate voter fraud began quietly, on Aug. 20, when a group of Mr. Barr’s most trusted U.S. attorneys received a memo highlighting exceptions to the department policy of “noninterference” in elections, according to documents and interviews with current and former Justice Department officials. ProPublica reported earlier on the memo.
At the heart of Mr. Trump’s arguments about voter fraud are misleading claims that noncitizens will illegally vote and that mail carriers will discard ballots cast for him. The policy exceptions mentioned in the memo pertained to investigations of potential crimes involving two types of people: “an illegal alien fraudulently registering to vote” and “a federal official entrusted to facilitate the voting process, such as a postal carrier.”
That same day, the president telegraphed how the Justice Department planned to deal with voter fraud in an interview with Sean Hannity of Fox News.
“We have people watching,” Mr. Trump said. “We have U.S. attorneys watching. We have sheriffs watching. We have U.S. marshals watching.”
The department went further late last week saying that any suspicions of election fraud involving a federal official could still be investigated, effectively gutting the policy for the remainder of the 2020 presidential cycle.
Current and former department officials said that this exception is tempered somewhat by the fact that certain investigations are supposed to be approved by career lawyers in the public integrity section in Washington.
Already, the department’s new guidelines appear to have helped the president’s cause. He has promoted several false or misleading narratives involving voter fraud.
In September, Mr. Trump announced in a Fox News interview that law enforcement was investigating whether ballots cast in his name had been thrown in the trash. “They were Trump ballots,” he said.
At the time, his statements were unclear. But hours later, a U.S. attorney in Pennsylvania released a highly unusual statement that his office was investigating nine discarded ballots in Luzerne County, seven of which were cast for Mr. Trump, he said, itself an unusual disclosure. Prosecutors are not to supposed to discuss current criminal inquiries.
Mr. Barr had briefed Mr. Trump on the details of the investigation before they became public, according to a department official.
The White House and Mr. Trump’s campaign publicly trumpeted the case as an example of anti-Trump bias in the election. Local election officials have since attributed the discarding of the ballots to human error, though an investigation is continuing.
On Wednesday, the U.S. attorney in New Jersey announced the arrest of a postal worker accused of throwing out dozens of ballots among nearly 1,900 pieces of discarded mail. The ballots were recovered and then mailed.
Mr. Trump seemed to preview more Justice Department investigations on Thursday. He told Fox Business Network that the U.S. marshals and United States attorneys were “watching” officials in Nevada and New Mexico, adding, “We’ve got people watching nobody ever had.” The Justice Department has yet to announce any such investigations.
The president also reiterated his claims that law enforcement would have a direct role in policing voter fraud.
“It’s going to be a disaster the likes of which we’ve never seen,” he said. “We will never have seen an election like what’s going to take place. Thousands of ballots all over the country are being reported, some thrown in garbage cans with my name on them. Some thrown in trays in a river. What’s going on is absolutely crazy.”
Even if no charges are ever brought, the disclosures of the investigations would give Mr. Trump and his allies talking points that they can use to undermine the credibility of a Biden victory, with a particular emphasis on the Postal Service, which will handle more mail-in ballots than ever before because of the pandemic.
“The Department of Justice is feeding the narrative that somehow this election is rigged,’’ said Mark Dimondstein, the president of the American Postal Workers Union. “They are making postal workers — dedicated, hard-working public servants out here on the front lines of this pandemic — the scapegoats; the D.O.J. should be ashamed of themselves feeding into this narrative.”
President Trump, down by double digits in national polls, is attacking his enemies and even his aides. Joe Biden heads to Nevada today. Read live updates.
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