- According to an internal email first accessed by ProPublica, the Department of Justice is rolling back a decades-long rule that bars prosecutors from publicly announcing election-related criminal investigations or engaging in similar activities in the months before the election.
- The rule was intended to prevent prosecutors from taking actions that could sway the election by hurting public confidence in election results or depressing voter turnout.
- Many experts say the move is an intentional effort by Attorney General Barr, who has backed the many false claims President Trump has made about the security of mail-in voting, in order to generate more public distrust in the system and help Trump’s re-election chances.
- In a statement, the DOJ said the email was part of routine guidance for election preparations, and that no political appointee had any role in “directing, preparing or sending” it.
DOJ Weakens Decades-Old Rule
The Department of Justice (DOJ) has weakened a 40-year-old rule that prohibited federal prosecutors from interfering in elections by announcing fraud-related criminal investigations or arrests in the months before Election Day, according to an internal email first reported by ProPublica Wednesday.
The email, according to the outlet, was sent on Friday by an official in the DOJ’s Public Integrity Section to a group of prosecutors, specifically outlines “an exception to the general non-interference with elections policy.”
Under that exception, federal prosecutors can now take public investigative actions before an election is over if they suspect election fraud has occurred that involves postal workers or military employees.
Previously, the long-standing department rule barred federal prosecutors from taking public steps in the months before an election due to concerns that they could depress voter turnout or erode public confidence in election results and thus sway the outcome.
For decades, the rule had been engrained in official DOJ policies and literature, including the most recent official DOJ handbook for Federal Prosecution of Election Offenses.
That handbook explicitly says that starting a public investigation before the election ends, “runs the obvious risk of chilling legitimate voting and campaign activities. It also runs the significant risk of interjecting the investigation itself as an issue, both in the campaign and in the adjudication of any ensuing election contest.”
Experts Voice Concerns
Notably, DOJ officials told ProPublica that the exception is written in a way that it could cover other types of investigations. However, the fact that it specifically singled out postal workers and defense employees — who play a role in delivering military ballots — is incredibly significant.
As the report notes, both are groups that President Donald Trump has repeatedly and falsely claimed are susceptible to fraud and will result in a rigged election.
While the vast majority of experts have said that is not true, Attorney General Bill Barr has also backed Trump in spreading falsities. As a result, many experts are concerned that Barr will use this exemption to the decades-long DOJ policy to bolster those false claims and help Trump’s re-election chances by undermining public confidence in the outcome of the election.
With this move, the DOJ could “build a narrative, despite the absence of any evidence, of fraud in mail-in voting so Trump can challenge the election results if he loses,” Joyce Vance, a former U.S. attorney in Alabama under the Barack Obama administration told The New York Times.
“They’ve told us this is their strategy, and we’re watching them implement it.”
That point was also echoed by Justin Levitt, a former official in the Justice Department’s civil rights division who worked on voting issues.
“It’s not good to have an exemption from a noninterference in elections policy,” he told The Washington Post. “That means, ‘here are the ways we are allowed to interfere in elections.’ I worry that this policy is a green light to use federal law enforcement investigations for partisan political purposes.”
But Justice Department officials pushed back against the claim that this decision was politically motivated.
“Career prosecutors in the Public Integrity Section of the Department’s Criminal Division routinely send out guidance to the field during election season,” DOJ spokesperson Matt Lloyd said in a statement to the media. “This email was simply part of that ongoing process of providing routine guidance regarding election-related matters. No political appointee had any role in directing, preparing or sending this email.”
Department officials also told reporters that the email was not intended to reflect a policy change, but instead to highlight certain exceptions to the policy that had already existed.
But many election experts, career prosecutors, and other former DOJ officials contradicted both those remarks.
“This is anything but routine,” former federal prosecutor Anne Milgram told CNN. “DOJ has not in the history that I have known relaxed any rule in a way like this. It is giving a green light to impact the election.”
Others also pointed to the fact that avoiding election interference has been a long-held, overarching tradition within the DOJ and something that Barr himself even reiterated in guidance he issued back in May.
“Partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” he wrote.
“Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
Pennsylvania Ballots and DOJ Justifications
Regarding that May guidance specifically, numerous experts have also speculated that part of the reasoning behind this new change was to justify a widely criticized announcement made by Barr and the DOJ a few weeks ago, which appeared to violate those very same guidelines.
In an incredibly unusual decision, the DOJ broke with long-standing policy and publicly announced it was investigating whether local elections officials in Pennsylvania illegally discarded nine mail-in military ballots, seven of which the agency said were cast for Trump.
The announcement itself — and especially the decision to include the part about seven of the ballots being cast for Trump — was condemned by several experts. Many noted that not only did it go against Barr’s own guidance, but it was also irrelevant to the investigation and specifically helped feed Trump’s baseless attacks on mail-in voting.
Trump has since repeatedly used the Pennsylvania incident to fuel his false claims that the system voting is riddled with fraud, despite the fact that the state’s top election official later said that early indications have shown that the incident was “a bad error” and “not intentional fraud.”
The combination of Trump using this incident and the DOJ announcing it has sparked concern over the DOJ using its power to help Trump. Especially because, at the time, it was reported that Barr himself had personally told Trump about the incident before the DOJ made the announcement.
In fact, it was actually Trump who first mentioned the Pennsylvania ballots during a media interview, with the DOJ then issuing its release later.
With this new guidance allowing prosecutors to intervene in elections, experts say that not only may this be a justification for the Pennsylvania announcement, but Americans could also expect to see more events like this moving forward.
“It makes me think that what’s coming is a series of announced investigations or partial theories of incomplete facts, pertaining to the mail-in voting process, that are further designed to undermine the integrity of an election process that is actually quite secure,” Levitt said.
See what others are saying: (The New York Times) (The Washington Post) (CNN)
Jan. 6 Committee Prepares Criminal Charges Against Steve Bannon for Ignoring Subpoena
The move comes after former President Trump told several of his previous aides not to cooperate with the committee’s investigation into the insurrection.
Bannon Refuses to Comply With Subpoena
The House committee investigating the Jan. 6 insurrection announced Thursday that it is seeking to hold former White House advisor Steve Bannon in criminal contempt for refusing to comply with a subpoena.
The decision marks a significant escalation in the panel’s efforts to force officials under former President Donald Trump’s administration to comply with its probe amid Trump’s growing efforts to obstruct the inquiry.
In recent weeks, the former president has launched a number of attempts to block the panel from getting key documents, testimonies, and other evidence requested by the committee that he claims are protected by executive privilege.
Notably, some of those assertions have been shut down. On Friday, President Joe Biden rejected Trump’s effort to withhold documents relating to the insurrection.
Still, Trump has also directed former officials in his administration not to comply with subpoenas or cooperate with the committee.
That demand came after the panel issued subpoenas ordering depositions from Bannon and three other former officials: Chief of Staff Mark Meadows, Deputy Chief of Staff Dan Scavino, and Pentagon Chief of Staff Kash Patel.
After Trump issued his demand, Bannon’s lawyer announced that he would not obey the subpoena until the panel reached an agreement with Trump or a court ruled on the executive privilege matter.
Many legal experts have questioned whether Bannon, who left the White House in 2017, can claim executive privilege for something that happened when he was not working for the executive.
Panel Intensifies Compliance Efforts
The Thursday decision from the committee is significant because it will likely set up a legal battle and test how much authority the committee can and will exercise in requiring compliance.
It also sets an important precedent for those who have been subpoenaed. While Bannon is the first former official to openly defy the committee, there have been reports that others plan to do the same.
The panel previously said Patel and Meadows were “engaging” with investigators, but on Thursday, several outlets reported that the two — who were supposed to appear before the body on Thursday and Friday respectively — are now expected to be given an extension or continuance.
Sources told reporters that Scavino, who was also asked to testify Friday, has had his deposition postponed because service of his subpoena was delayed.
As far as what happens next for Bannon, the committee will vote to adopt the contempt report next week. Once that is complete, the matter will go before the House for a full vote.
Assuming the Democratic-held House approves the contempt charge, it will then get referred to the U.S. Attorney for the District of Columbia to bring the matter before a grand jury.
See what others are saying: (CNN) (The Washington Post) (Bloomberg)
Senate Votes To Extend Debt Ceiling Until December
The move adds another deadline to Dec. 3, which is also when the federal government is set to shut down unless Congress approves new spending.
Debt Ceiling Raised Temporarily
The Senate voted on Thursday to extend the debt ceiling until December, temporarily averting a fiscal catastrophe.
The move, which followed weeks of stalemate due to Republican objections, came after Senate Minority Leader Mitch McConnell (R-Ky.) partially backed down from his blockade and offered a short-term proposal.
After much whipping of votes, 11 Republicans joined Democrats to break the legislative filibuster and move to final approval of the measure. The bill ultimately passed in a vote of 50-48 without any Republican support.
The legislation will now head to the House, where Majority Leader Steny Hoyer (D-Md.) said members would be called back from their current recess for a vote on Tuesday.
The White House said President Joe Biden would sign the measure, but urged Congress to pass a longer extension.
“We cannot allow partisan politics to hold our economy hostage, and we can’t allow the routine process of paying our bills to turn into a confidence-shaking political showdown every two years or every two months,’’ White House Press Secretary Jen Psaki said in a statement.
Under the current bill, the nation’s borrowing limit will be increased by $480 billion, which the Treasury Department said will cover federal borrowing until around Dec. 3.
The agency had previously warned that it would run out of money by Oct. 18 if Congress failed to act. Such a move would have a chilling impact on the economy, forcing the U.S. to default on its debts and potentially plunging the country into a recession.
Major Hurdles Remain
While the legislation extending the ceiling will certainly offer temporary relief, it sets up another perilous deadline for the first Friday in December, when government funding is also set to expire if Congress does not approve another spending bill.
Regardless of the new deadline, many of the same hurdles lawmakers faced the first time around remain.
Democrats are still struggling to hammer out the final details of Biden’s $3.5 trillion spending agenda, which Republicans have strongly opposed.
Notably, Democratic leaders previously said they could pass the bill through budget reconciliation, which would allow them to approve the measure with 50 votes and no Republican support.
Such a move would require all 50 Senators, but intraparty disputes remain over objections brought by Joe Manchin (D-W.V.) and Kyrsten Sinema (D-Az.), who have been stalling the process for months.
Although disagreements over reconciliation are ongoing among Democrats, McConnell has insisted the party use the obscure procedural process to raise the debt limit. Democrats, however, have balked at the idea, arguing that tying the debt ceiling to reconciliation would set a dangerous precedent.
Despite Republican efforts to connect the limit to Biden’s economic agenda, raising the ceiling is not the same as adopting new spending. Rather, the limit is increased to pay off spending that has already been authorized by previous sessions of Congress and past administrations.
In fact, much of the current debt stems from policies passed by Republicans during the Trump administration, including the 2017 tax overhaul.
As a result, while Democrats have signaled they may make concessions to Manchin and Sinema, they strongly believe that Republicans must join them to increase the debt ceiling to fund projects their party supported.
It is currently unclear when or how the ongoing stalemate will be resolved, or how either party will overcome their fervent objections.
See what others are saying: (The New York Times) (NPR) (The Washington Post)
California Makes Universal Voting by Mail Permanent
California is now the eighth state to make universal mail-in ballots permanent after it temporarily adopted the policy for elections held amid the COVID-19 pandemic.
CA Approves Universal Voting by Mail
California Gov. Gavin Newsom (D) signed a bill Monday requiring every registered voter in the state to be mailed a ballot at least 29 days before an election, whether they request it or not.
Assembly Bill 37 makes permanent a practice that was temporarily adopted for elections during the COVID-19 pandemic. The law, which officially takes effect in January, also extends the time mail ballots have to arrive at elections offices from three days to seven days after an election. Voters can still choose to cast their vote in person if they prefer.
Supporters of the policy have cheered the move, arguing that proactively sending ballots to registered voters increases turnout.
“Data shows that sending everyone a ballot in the mail provides voters access. And when voters get ballots in the mail, they vote,” the bill’s author, Assemblyman Marc Berman (D-Palo Alto), said during a Senate committee hearing in July.
Meanwhile opponents — mostly Republicans — have long cast doubts about the safety of mail-in voting, despite a lack of evidence to support their claims that it leads to widespread voter fraud. That strategy, however, has also faced notable pushback from some that a lot of Republicans who say it can actually hurt GOP turnout.
Others May Follow
The new legislation probably isn’t too surprising for California, where over 50% of votes cast in general elections have been through mail ballots since 2012, according to The Sacramento Bee. Now, many believe California will be followed by similar legislation from Democrats across the country as more Republican leaders move forward with elections bills that significantly limit voting access.
Newsome signed 10 other measures Monday changing election and campaign procedures, including a bill that would require anyone advocating for or against a candidate to stand farther away from a polling place. Another bill increases penalties for candidates who use campaign funds for personal expenses while a third measure increases reporting requirements for limited liability corporations that engage in campaign activity.
“As states across our country continue to enact undemocratic voter suppression laws, California is increasing voter access, expanding voting options and bolstering elections integrity and transparency,” Newsom said in a statement.
“Last year we took unprecedented steps to ensure all voters had the opportunity to cast a ballot during the pandemic and today we are making those measures permanent after record-breaking participation in the 2020 presidential election.”
The news regarding California came just in time for National Voter Registration day today, giving Americans another reminder to make sure they’re registered in their states. For more information on how to register, visit Vote.gov or any of the other resources linked below.