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William Barr’s “Radical Break” from Precedent, and the Future of the Justice Department

On Monday, less than a week after President Trump lost the election to Joe Biden, the Attorney General, William Barr, authorized Justice Department prosecutors to investigate the President’s unsubstantiated claims of voter fraud. The authorization was a significant departure from the norms of the department, which usually does not undertake public investigations of voter fraud until after local election officials have finished counting ballots and certified election results. In response to Barr’s announcement, Richard Pilger, who oversaw voter-fraud investigations at the Justice Department, stepped down from that role. (He remains an employee at the D.O.J.)

I recently discussed Barr’s actions and the future of federal law enforcement with Wendy Weiser, who directs the Democracy Program at the Brennan Center for Justice, a nonpartisan think tank at the N.Y.U. School of Law. During our conversation, which has been edited for length and clarity, we discussed Barr’s track record of politicizing law enforcement to benefit Trump, how seriously we should take Barr’s promise of voter-fraud investigations, and what a Biden Administration can do to make the Justice Department less partisan.

Historically, what role has the D.O.J. played in making sure our elections are free and fair, and why is this memo from the Attorney General a break from tradition, if it is?

The Department of Justice has played a few different roles in keeping our elections fair. They have helped to monitor and observe elections for the purpose of insuring compliance with our nation’s civil-rights laws. That was rolled back a little bit because of the Supreme Court decision, in 2013, that gutted a portion of the Voting Rights Act. The Department of Justice also enforces election laws against voter fraud and other misconduct. For decades, the Department of Justice has had a clear written policy prohibiting any public actions to investigate election crimes or voter fraud before an election is certified. This has been in order to prevent interfering in the election and politicizing the law-enforcement process. So this recent memo by Attorney General Barr is a radical break from this practice and from the long-standing rules of the Department of Justice to avoid any kind of public interference in the election process. It suggests that there can be public investigations and law-enforcement actions taken while an election is still ongoing, and before the votes are certified.

Let me just play devil’s advocate for a minute here. We obviously do not have widespread evidence of voter fraud at all—Trump’s allegations are completely unfounded. But, if we did have reason to think that there was significant voter fraud, why wouldn’t we want the Justice Department to investigate it as soon as possible, especially before the vote is made official and the Electoral College chooses the next President? What’s the thinking there for keeping out the Department of Justice?

There are a couple of things. First, there’s nothing that prevents the Department of Justice from quietly investigating any election misconduct during this period. The long-standing bar has been against any public actions. But the Department of Justice isn’t the only body that is enforcing the integrity of our elections. The principal actors responsible for election integrity and preventing voter fraud are state and local elected officials and law-enforcement officials. And there is no reason to think that their investigation and work is not sufficient. There is no place for the Attorney General in elections. The Attorney General doesn’t decide elections. Courts don’t decide elections. Voters do.

Imagine this crazy hypothetical, where we have an Attorney General who really wants to mess with the election results and writes a memo like this. What would be the steps he could take that would concern you?

It’s hard to imagine what steps the Department of Justice might take in the absence of any evidence of widespread misconduct or any factual predicate for any legal action or investigation. This appears to be little more than a P.R. stunt designed to sow doubt in the integrity and outcome of the election, which has been the strategy that the Trump campaign has been pursuing.

I want to find a balance between saying that this is O.K., and saying that this means William Barr is about to give Donald Trump a second term.

I think it’s a P.R. campaign. I don’t think there’s any legal risk here. I think, as you noted, it is absolutely appropriate, at the right time and in the right way, for the Department of Justice to investigate any misconduct and to enforce laws against that misconduct. And there has been no evidence that has come to light that would justify any such action at this point. So it’s hard to imagine what lawful nightmare scenario could unfold here without any factual basis.

With regard to Attorney General Barr, this seems to fit into a larger pattern in the way he has gone about running the Department of Justice. Are there other steps he has taken during his tenure that remind you of this?

There has been a disturbing pattern of Attorney General Barr misusing the power of the Department of Justice for inappropriate political aims. This is a pattern for which the Department of Justice has been criticized by the courts, for example, in the census case. From the handling of the Mueller investigation to the handling of politically salient cases, there has been a fairly consistent pattern of politicizing law enforcement for the benefit of the President. I think that there’s a lot of work that’s going to need to be done in the coming months in the Biden Administration to restore the integrity and neutrality of the Department of Justice.

Obviously, Biden should appoint more upstanding people than Barr. But how worried are you about the functioning of the Department of Justice now, and what could the next Administration do to insure less partisanship than there has been in recent years?

Well, obviously, first and foremost, there needs to be personnel changes and the removal of individuals who’ve been misusing the office of the Department of Justice. But I think that we have had long-standing norms and practices that were designed to insulate the Department of Justice from political interference, from the White House, that need to be put back in place, and that can be done by executive order. For example, in nearly every Administration before this one, the White House has issued a limited-contact policy that actually was designed to limit who can talk with the Department of Justice over ongoing enforcement matters, so as to prevent political interference. This Administration did not issue—or adhere to these practices.

I think it is critical that, at the beginning of the new Administration, President-elect Biden adopts a similar policy. There are a number of other executive actions that can be taken to insulate the Department of Justice from further politicization, including strengthening the role of, and insulating, the Inspector General. We have proposed a series of executive actions that President Biden can take, in order to restore the respect for the rule of law. And it is not just the President. Congress can also pass laws that are designed to rein in abuse of executive power and protect against the politicization of law enforcement. Congress can impose these constraints and limits on the executive branch, so that we don’t have these risks going forward.

Correct me if this is wrong, but recently Congress has been unwilling to do things in this area, which is one of the problems, because if it’s just a question of executive orders and norms, another Administration with a friendly Supreme Court can just issue whatever executive orders it wants.

Congress has been unwilling, but we’re going to be in a new era. We’ll either see a shift in partisan control of the Congress, or an era of divided government during which the incentives will be different and the Executive might be willing to accept legislation that would codify these long-standing constraints. So I do think that, going forward, the potential for reform is much greater. This Congress has shown itself to be unwilling to constrain the President in any way, and even appears to be going along with the President’s attempt to deny the election outcome.

As I was preparing for this interview, I was reading about the scandal during the second Bush Administration regarding U.S. Attorneys and elections. Can you talk about what that scandal was and how it played out in Congress after it was discovered?

Yeah. The Trump campaign is not the first campaign to raise bogus claims of voter fraud to try to restrict voting and get an edge in an election. This has been a long-standing strategy among some Republicans for the past couple of decades. It came to a head during the 2006 midterm elections. Pressure was put on U.S. Attorneys, in advance of the elections, to bring politically motivated prosecutions for voter fraud, against this long-standing policy that we were talking about earlier that prohibits taking such actions publicly before all the ballots have been counted. Some U.S. Attorneys who refused to engage in these publicity stunts were fired and replaced with more compliant U.S. Attorneys. In addition, the Civil Rights Division and Voting Section—the civil-rights-enforcement apparatus of the Department of Justice—was enlisted in an effort to try to push more voting restrictions and reduce civil-rights protections for voters across the country, in the lead-up to that election.

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