Justice Department meets Trump, Giuliani vote-fraud claims with silent skepticism
By DEVLIN BARRETT AND MATT ZAPOTOSKY | The Washington Post | Published: November 21, 2020
WASHINGTON — The Justice Department has met President Donald Trump's claims of widespread voter fraud with two weeks of silence, not taking any overt moves to investigate what Trump's lawyer, Rudy Giuliani, claims is a globe-spanning conspiracy to steal the election.
Such deafening silence from one of the government's main enforcers of election law indicates just how little evidence there is to support the wild, wide-ranging claims made by Trump and his supporters, most notably Giuliani in a Thursday news conference held inside the Republican National Committee headquarters.
Privately, Justice Department officials have said they are willing to investigate legitimate claims of vote fraud; Attorney General William Barr even loosened some restrictions that might otherwise have discouraged prosecutors from doing so before results are certified.
But current and former officials said they thought Giuliani's accusations sounded "crazy," and they have not seen or heard of any evidence suggesting large-scale fraud, let alone the kind of intercontinental conspiracy described by the president's lawyer. Like others, they spoke on the condition of anonymity to discuss a politically sensitive matter.
A Justice Department spokeswoman did not respond to messages seeking comment.
The Justice Department's silence is "a tiny sliver of normalcy, and frankly a positive sign that we are on our way back to a better place," said Justin Levitt, a former Justice Department voting rights official in the Obama administration who is now a professor at Loyola Law School in Los Angeles.
"In a way, that's hard to say because it feels like lowering the bar to below the floor, to say we should all be pretty pleased that the institution of law enforcement for the United States didn't go either full-on partisan talking-point machine or full-on conspiracy theorist. In normal times that wouldn't be something to celebrate, that would just be a given. . . . The Justice Department also hasn't come out and said the world is round, because they don't need to."
Levitt noted that the public can have an inflated sense of the federal government's role in elections, when much of the law and regulations are handled at the state and local levels.
"The Justice Department is a very powerful battleship, but there are limits to its jurisdiction and in an awful lot of elections, the contested ground is on land or in the air, where a battleship doesn't do you a lot of good," said Levitt.
Federal law enforcement officials have also said they want to avoid getting dragged into investigations that lack any reasonable basis of suspicion. In many of the affidavits cited by Giuliani and other Republicans, the assertions amount to ill-defined suspicions and conjecture about what might have happened, not witness accounts of actual misconduct.
In a handful of instances, the Justice Department has quietly signaled it is reviewing allegations that have been brought to the department, but even in those instances federal officials have found little evidence of wrongdoing, people familiar with the matter say.
One Justice Department official said that just the act of announcing a probe might cast an unwarranted "pall" on the election's credibility.
Richard L. Hasen, a law professor at the University of California at Irvine and the author of "Election Meltdown," said that given the attorney general's public disparagement of mail-in voting leading up to the election, "if there had been anything he could have hung his hat on after the election, he would have done so. The fact that no one has come forward with anything as far as we know, that's a pretty good indication this has been a pretty clean election."
It would be nice, Hasen added, "if Barr would issue a public statement saying there had been no evidence uncovered of any fraud in the election" but he might be fired if he did so. Hasen cited Trump's ouster of Chris Krebs as an example.
Krebs, who had led the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency, one of the key federal agencies charged with protecting election security, was fired Tuesday after publicly defending the vote's integrity in the face of baseless claims suggesting otherwise.
Shortly before his dismissal, Krebs refuted allegations made by the president's supporters that election systems had been manipulated, tweeting that "59 election security experts all agree, 'in every case of which we are aware, these claims either have been unsubstantiated or are technically incoherent.' "
Krebs called Giuliani's Thursday news conference "the most dangerous 1hr 45 minutes of television in American history. And possibly the craziest."
Some current and former officials have worried that Barr, one of Trump's most loyal and outspoken cabinet secretaries, might marshal Justice Department resources to bolster the president's unfounded claims. Officials inside the department were particularly distressed when Barr issued a memo allowing investigators to publicly pursue allegations of "vote tabulation irregularities" in certain cases before results are certified, a reversal of past Justice Department policy.
A group of 16 assistant U.S. attorneys specially assigned to monitor election malfeasance urged Barr last week to rescind the memo, saying they had seen no evidence of substantial anomalies, and the head of the Justice Department's election crimes branch stepped down to a lower position in protest.
But since then, the department has not made any public moves in investigations that might bolster Trump's claims. And some officials note that Barr's directive was carefully worded, allowing exceptions only for investigations into anomalies that might change the results of a race. The memo noted explicitly, "Nothing here should be taken as any indication that the Department has concluded that voting irregularities have impacted the outcome of any election."