The two-page memo comes as the Trump campaign and its allies have urged the department to investigate their claims, despite little evidence that such fraud exists. Justice Department officials had previously confirmed they were looking into allegations in Nevada, and had referred other information out of Michigan to the FBI.
In his memo, circulated two days after results showed former vice president Joe Biden had defeated Trump, Barr seemed to take aim at previous guidance from the Justice Department’s Election Crimes Branch that said prosecutors should not — in most instances — take overt steps in voter fraud or related investigations until after election results are in and certified. The guidance was designed to ensure that voters and state and local election officials, rather than the federal government, decide the results.
But Barr wrote that the previous directive was never “a hard and fast rule,” and that a “passive and delayed enforcement approach can result in situations in which election misconduct cannot realistically be rectified.” He also noted that concern about the Justice Department influencing an election were reduced once voters had finished casting ballots.
“Given this, and given that voting in our current elections has now concluded, I authorize you to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions in certain cases, as I have already done in specific instances,” Barr wrote.
Vanita Gupta, the former head of the Justice Department’s Civil Rights Division during the Obama administration who is now president of the Leadership Conference on Civil and Human Rights, said the memo amounts to “scaremongering” that will allow officials to send letters or take other public steps that might suggest there is voter fraud in a particular state, when in fact there is none.
“This is totally predictable. It’s DOJ scare tactics again. It’s the same show we’ve seen before,” Gupta said. “Barr is probably doing this because Trump is demanding that he do something, but the voters decided this election, and overwhelmingly voted for Biden.”
Matthew Miller, a former Justice Department spokesman during the Obama administration, said, “There’s no justification for doing this now.”
“The best-case scenario is that Barr did this to appease Trump and add credibility to his allegations of voter fraud,” Miller said. “The worst-case scenario is that DOJ is planning to intervene in some way and try to throw the election to the president. Neither one is good, but one is much, much worse than the other.”
Bob Bauer, a Biden campaign attorney, said in a statement partially quoting Barr’s memo that it was “deeply unfortunate” that Barr “chose to issue a memorandum that will only fuel the ‘specious, speculative, fanciful or far-fetched claims’ he professes to guard against.”
“Those are the very kind of claims that the president and his lawyers are making unsuccessfully every day, as their lawsuits are laughed out of one court after another,” Bauer said.
Barr’s move came a day after the chairman of the Senate Judiciary Committee wrote to him urging an investigation into possible impropriety in Pennsylvania. On Sunday, Sen. Lindsey O. Graham (R-S.C.) sent a letter to Barr and FBI Director Christopher A. Wray asking them to investigate claims made by a postal worker in Erie, Pa., that there was mishandling of mail-in ballots by postal supervisors there.
“I urge you to investigate these claims as soon as possible,” Graham wrote. “It is imperative that the American people have confidence in the 2020 election and all other elections. The expansion of voting by mail has placed the post office at the center of the election and we must ensure that the entire postal system operates with integrity.”
A Justice Department official said it is reviewing Graham’s letter. The official said Barr had not been asked to send the memo by the White House.
Barr’s directive was heavily caveated and did not offer new evidence of substantive election fraud. He did not identify the “specific instances” in which he had authorized prosecutors to examine allegations of vote tabulation irregularities, and he noted pointedly, “Nothing here should be taken as any indication that the Department has concluded that voting irregularities have impacted the outcome of any election.”
Barr also limited the cases that prosecutors might be able to open under the new guidance to irregularities that “if true, could potentially impact the outcome of a federal election in an individual State.”
“Any investigation of claims of irregularities that, if true, would clearly not impact the outcome of a federal election in an individual State should normally be deferred until after the election certification process is completed,” Barr wrote.
Before Monday, the department had taken only modest steps to investigate fraud, despite significant pressure from the Trump campaign and its allies.
Last week, for example, lawyers for the Trump campaign sent a letter to Barr alleging voter fraud in Nevada, where they claimed to have identified more than 3,000 people who voted improperly because there was some evidence to suggest they moved out of state. But state officials soon pushed back on that claim, saying some of those voters might have been serving in the military. A Justice Department official, speaking on the condition of anonymity, said at that time that the department was “looking into” the matter, but declined to comment further.
Similarly, Republican National Committee Chairwoman Ronna McDaniel last week said she had sent claims to the Justice Department about election workers in Michigan being told to backdate certain ballots, though she conceded the allegations were not fully vetted. A Justice Department official said the information McDaniel provided has been referred to the FBI, though the FBI declined to say what — if anything — it was doing.
Justin Levitt, a former Justice Department official who is now a professor at Loyola Law School in Los Angeles, said Barr’s memo “is really about marketing.”
Levitt noted that the Justice Department is very limited in its ability to stop vote counts or disqualify ballots, and that there is little serious evidence to suggest voting fraud.
“You should absolutely expect an investigation or two to be announced, probably in Pennsylvania, and you should take it about as seriously” as the announcement Trump’s lawyer Rudolph W. Giuliani gave last week at Four Seasons Total Landscaping in Philadelphia, Levitt said.
“This memo says to U.S. attorneys, if you want to engage in a desperate attempt to get attention, that’s okay, but unfortunately, the public should not take the announcement of such investigations seriously,” Levitt said.
Before Monday, the Justice Department had issued just one public statement on Trump’s broad allegations of fraud. Kerri Kupec, a Justice Department spokeswoman, told reporters, “The Department of Justice pursues all actionable information it receives and, as is always the case, encourages anyone who suspects a federal crime to report it to their local FBI office.”
The Justice Department had reaffirmed its long-standing policy of not taking overt steps on possible election fraud before results are certified as recently as December 2017, when it issued a guide telling prosecutors “not to conduct overt investigations, including interviews with individual voters, until after the outcome of the election allegedly affected by the fraud is certified.” But more recently, department also issued guidance offering prosecutors more leeway, particularly when misconduct by federal employees, such as postal workers, might be at issue.
In Monday’s directive, Barr seemed to defer to his subordinates, telling those to whom the memo was addressed: “You are the most senior leaders in the United States Department of Justice and I trust you to exercise great care and judgment in addressing allegations of voting and vote tabulation irregularities. While serious allegations should be handled with great care, specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries.”
The directive was sent to U.S. attorneys throughout the country, as well as the heads of the Justice Department’s Criminal Division, Civil Rights Division, National Security Division and the FBI director.
George Terwilliger, who served as Barr’s deputy attorney general in the George H.W. Bush administration and is now in private practice, said the memo struck him as “business as usual,” and meant to remind prosecutors they need not stand by if they suspect fraud is occurring.
“Oftentimes there is a unique opportunity to collect evidence, or refute it, for that matter, while it’s ongoing, that wouldn’t be there two months later,” Terwilliger said.