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Lawyers Sound the Alarm as ‘Off the Rails’ AG Barr Caters to President Trump’s Baseless Fraud Narrative: ‘A Straightforward Abuse of Power’


Attorney General Bill Barr, ever the company man in service of the incumbent Republican president, has reportedly authorized the activation of the Department of Justice to investigate President Donald Trump’s completely unsubstantiated stolen election claims. Barr’s move to insert himself in election matters, though unsurprising to some and to others an inevitability based on his prior decisions, sparked widespread outrage on Monday.

President Trump is clearly not interested in conceding the election to Joe Biden, who has already given a victory speech as president-elect. As Trump campaign lawyers continue filing extreme lawsuits, Attorney General Barr has been tapped to pinch hit, according to the Associated Press:

The Trump administration threw the presidential transition into tumult on Monday, Attorney General William Barr authorizing the Justice Department to probe allegations of voter fraud and President Donald Trump firing the Pentagon chief and blocking government officials from cooperating with President-elect Joe Biden’s team.

Despite little evidence of fraud, Barr signed off on investigations into the unsubstantiated claims made repeatedly by Trump.

The Wall Street Journal reported that Barr sent a memo (read it here) to U.S. Attorneys on Monday empowering them to investigate “substantial allegations” of voting irregularities. According to the Journal, the memo says prosecutors’ investigations “may be conducted if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State” (there has been no evidence in any of the Trump campaign’s lawsuits to support election-altering fraud).

The memo was also quoted as saying that “specious, speculative, fanciful or far-fetched claims should not be the basis for initiating federal inquiries.” (Again, it’s unclear what qualifies as “fanciful” or “specious” at this point given that the Trump campaign has filed a lawsuit asking a federal judge to block Pennsylvania from certifying election results.) The Barr memo further claimed that this authorization does not mean it is the department’s official belief and conclusion that voting irregularities “have impacted the outcome of any election.”

Adjunct Associate Professor of Law at Tulane Law School Ross Garber, an election law expert, noted that “Election fraud investigations are usually conducted by state officials.”

“And, while the Department of Justice has an established and long-standing role in protecting voting rights and conducting related inquiries, the President’s unsubstantiated allegations understandably lead to skepticism,” Garber told Law&Crime. “I’m also skeptical, but will reserve judgment.”

Many other attorneys promptly sounded the alarm over a Department of Justice being used as a “political weapon” to pacify the president.

Attorney Gene Rossi, a Law&Crime Network commentator and former federal prosecutor, said that the “Justice Department is not Trump’s toy—and Barr should not act like the President’s binky.”

“Just when we thought that the most politically compliant Attorney General in modern times would go quietly into the night, Bill Barr rises from his bunker and shocks us again,” Rossi told Law&Crime.

National security lawyer Bradley P. Moss told Law&Crime that “This is getting rather dangerously close to the line of unlawful political interference by the Justice Department.”

“The federal government has very little role in the conduct of our elections, and there is no indication that the various quixotic lawsuits being filed in the states can’t resolve this issue just fine without intervention by DOJ,” Moss said. “Hopefully this is simply more ‘election theater’ by AG Barr to assuage the president’s fragile ego than anything else.”

Many others legal commentators were quick to say that Barr is an attorney general careening off of the tracks.

“Barr already has turned DOJ into a political weapon for Trump. Now he has crossed the last line of independence, and violated DOJ’s own policy, by using the prosecutorial power to try to gin up support for Trump’s desperate, last-ditch fraud narrative,” former federal prosecutor and current CNN legal analyst Elie Honig said. “He’s way off the rails now.”

Honig told Law&Crime in an email that the “whole world could see this one coming.”

“Barr has been trying for months to conjure any evidence to support the ‘massive voter fraud’ narrative, utterly without success,” he said. “This is a straightforward abuse of power but it won’t succeed.”

Former federal prosecutor Renato Mariotti, also a CNN legal analyst, told Law&Crime that Barr’s “instructions to federal prosecutors are contrary to established DOJ policy. ”

“He authorizes prosecutors to pursue ‘substantial allegations of voting and vote tabulation irregularities’ but it’s not clear what that means in this context. Are ‘substantial allegations’ very broad allegations that are not supported by evidence? Are ‘irregularities’ odd results that are not necessarily indicative of fraud?” Mariotti asked. “We don’t know because the terms are not defined and are not part of established DOJ policy.”

Joshua Douglas, the Thomas P. Lewis Professor of Law at University of Kentucky, told Law&Crime that Barr’s memo seems like “just another blatant attempt to make people question the legitimacy of the election.”

“There’s no evidence of fraud. We shouldn’t report on these actions as if they are serious,” he said.

Criminal defense attorney Bob Bianchi, a former Morris County, N.J. prosecutor and Law&Crime Network anchor, said it was clear Barr was “placating” the president.

“Obviously, given the U.S. attorney’s proximity to a president who seeks to have the Attorney General prosecute his political foes, this is always worrisome. But this situation to me is actually a ‘silver-lining’ thing,” Bianchi told Law&Crime. “So far, the career FBI and US attorneys have not caved into the political pressure (not too much that is)—in the end. And, the evidence of that is that the President is ‘angry’ with them (Barr in particular) for not delivering on unsubstantiated allegations that were deplete of something us lawyers call … evidence.”

Bianchi suggested this development is red meat for the short term but likely means nothing for the long term.

“This gyration today may be a salve to the President and a boon for conservative media to hear this for the moment, but in the end it is nothing more than public relations—important in a sense, but not important enough to overturn the math of elections,” he said, also pointing out that many prosecutors may be loath to engage in game-playing out of concern for future job security given that a Biden administration is incoming.

There were many other responses from lawyers and law professors.

“We’ve seen this movie before”

“Not good,” but maybe … hopefully there’s a line here?

So that’s what Barr’s been up to…

What people who are suing Barr are saying:

Attorney General Barr reportedly walked into Senate Majority Leader Mitch McConnell’s office earlier in the day.

Also earlier in the day, McConnell addressed the Senate and supported the president’s right to mount legal challenges.

Rudy Giuliani, the president’s personal attorney, clearly enjoyed the DOJ news.

[Image via NICHOLAS KAMM_AFP via Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.