During his testimony before the House committee investigating the Jan. 6 insurrection, former Attorney General William Barr used a number of strong terms to condemn former President Trump’s claims of a stolen election, from “bullsh-t” and “detached from reality” to “complete nonsense” and “crazy stuff.”
Such statements are important and credible rebukes of the lies that to this day continue to undermine faith in our democracy. But they also obscure the actions Barr took in the months leading up to the 2020 election that helped sow the same seeds of distrust. This includes his promotion of baseless claims about the risks of election fraud from the increased use of absentee voting, and his efforts to codify an accelerated timeline for Justice Department investigations of election fraud. American Oversight’s investigation of the department’s actions during that time period have also highlighted Barr’s role in feeding voter distrust.
Video of Barr’s testimony was played during the select committee’s June 23 hearing, during which he said he’d had the Justice Department investigate fraud claims to help ensure a peaceful transition of power. His statements distancing himself from Trump’s fraud claims were mainly focused on his actions the weeks after the election, when the Trump campaign sought to delegitimize the results. But fear-mongering about widespread voter fraud had begun long before the election was officially called for Joe Biden — and Barr played a significant role in elevating that distrust, with his assertions echoing the same lines being used by the Trump campaign. In the summer before the election, he said that voting by mail “opens the floodgates to fraud” — a claim repeated by Trump on Twitter — and he repeatedly raised the threat of foreign countries counterfeiting ballots without providing evidence to support such speculation.
In an interview with CNN in early September 2020, Barr cited a false story about fraud, saying the Justice Department had indicted a man in Texas who had collected 1,700 mail-in ballots and filled them out. After prosecutors said there was no such indictment, a Justice Department spokesperson said Barr had been given the false information in a briefing memo. Later, after American Oversight filed a Freedom of Information Act request for the memo, the Justice Department said that no such memo could be found.
That September, Barr also personally briefed Trump about an investigation of alleged voter fraud in Pennsylvania, prior to its public announcement by the U.S. attorney for the Middle District of Pennsylvania. Also before it was made public, White House Press Secretary Kayleigh McEnany said that more information about the investigation would be forthcoming, further suggesting coordination with the Justice Department.
According to the U.S. attorney’s press release on the investigation, his office was looking into nine “discarded” Trump mail-in ballots, later revising the statement to clarify that only seven of the ballots had been for Trump. While state officials said that the incident had been the result of an error on the part of an election worker who was subsequently fired, Trump and his campaign seized on the investigation as proof that the election was being stolen from him. Legal experts criticized the Justice Department’s announcement of the ongoing investigation as “illegitimate,” “improper,” and “contrived to provide political ballast” for Trump’s false narrative. At the conclusion of the investigation, no charges were filed.
American Oversight obtained documents that reveal that even after the election was over, Barr tried to codify in the Justice Manual — a document containing the department’s policies and procedures regarding investigations, litigation, and prosecutions — his Nov. 9 memo authorizing prosecutors to open election-fraud investigations “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.”
Such a change to the Justice Manual would permanently allow federal prosecutors to investigate fraud allegations during the election season — a significant departure from the department’s standard policy, which had said that “overt investigative steps ordinarily should not be taken until the election in question has been concluded, its results certified, and all recounts and election contests concluded” to avoid interjecting the federal government into election activity.
The records obtained by American Oversight include an email sent the week before Barr’s resignation in late December 2020 by Richard Donoghue, then the acting deputy attorney general, which shows Barr’s intention of revising the manual’s provision on election fraud investigations. In the email to Andrew Goldsmith, then the associate deputy attorney general, Donoghue summarized Barr’s stance regarding the proposed change: “He [Barr] has made it abundantly clear to [the Criminal Division] over and over that the Department has an obligation to police fraud in an ongoing election, not just deter misconduct in future elections.” As of writing, the proposal to change the Justice Manual is still pending.
Barr’s statements to the Jan. 6 committee — including his testimony that he told Trump that the voter-fraud claims had no merit — are an important repudiation of the former president’s lies. But the actions of Barr, and of other Trump administration officials who elevated and amplified the claims that undermined faith in our democracy, should not be overlooked, especially as Trump’s lies continue to animate Trump supporters across the country. Moreover, since leaving the administration, Barr and other prominent Republicans have created a legal group aimed at bolstering state legislatures’ ability to set voting rules and reducing courts’ ability to intervene — an issue that will soon be before the U.S. Supreme Court and one that could have profound implications not just for gerrymandering and voting rights, but also for the potential for state legislatures claiming they can overturn the will of the people in elections.
American Oversight continues to investigate the Justice Department’s actions in the lead-up to the 2020 election and the attack on the U.S. Capitol on Jan. 6, 2021.
Part of Investigation: