The Justice Department has made an exception to a 40-year policy that deterred federal prosecutors from announcing the launch of investigations during an election cycle when allegations of voter fraud are made, according to a source familiar with the matter.
The policy guidance is a repeat of information given by the head of the Public Integrity Section to all US attorneys this summer, the source said, but reiterating the loophole in an email – obtained by ProPublica – that pertains to investigations against postal workers and military personnel so close to Election Day is drumming up suspicions.
Millions of registered voters are opting to cast their ballots via mail this year because of the pandemic for different reasons, including to avoid crowding at polling sites. But for months, elected officials, especially President Donald Trump and Attorney General William Barr, have made public statements about mail-in voting conspiracy theories.
Barr has said the mail-in voting system would welcome fraudulent activity and invade a voter’s privacy. Barr also echoed Trump by encouraging voters to break the law and cast two ballots.
“This is anything but routine. 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,” said Anne Milgram, a CNN legal analyst and former federal prosecutor.
Executives and other political leaders within the Justice Department were not aware of the memo, the source said.
“Career prosecutors in the Public Integrity Section of the Department’s Criminal Division routinely send out guidance to the field during election season,” Justice Department spokesman Matt Lloyd said. “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.”
The email was sent weeks after the US Attorney’s Office for the Middle District of Pennsylvania issued an unusual news release announcing the investigation of nine mail-in military ballots that were allegedly discarded. The office sent a revised news release the same day to correct that seven of the ballots were for Trump.
“The potential for a postal employee to not do his job and throw away ballots for whatever reason – a non-partisan reason – there’s never been a prohibition against arresting them to send a message to all postal employees that you can’t impact the election,” said Paul Pelletier, a former federal prosecutor, who is now a consultant. “Why now? Given what happened in Pittsburgh my suspicion is that there’s a political ulterior motive.”
Luke Cass, a former senior trial attorney in DOJ’s Public integrity Section, said that highlighting postal workers and military officials could be intended as a temporary message given the expectation that a lot of voters will vote by mail.
“They want to make it clear they’re not going to tolerate any sort of fraud in making sure those votes are counted.” But Cass noted, “There’s a carve out in there for any other misconduct by federal officials so that covers basically anybody from the guy if he is a federal worker cleaning up the courthouse to the FBI.”
The move from the US attorney’s office essentially laid the foundation for an exception to a policy that was created when the Election Crimes Branch was created in 1980 within the Public Integrity Section.
The staff of about 30 attorneys “prosecute selected cases involving federal, state, or local officials, and also provide advice and assistance to prosecutors and agents in the field regarding the handling of public corruption cases,” according to the Public Integrity Section’s 2018 report to Congress.
The Election Crimes Branch “reviews all major election crime investigations, including all proposed grand jury investigations and FBI full-field investigations, and all election crime charges proposed by the various United States Attorneys’ Offices for legal and factual sufficiency,” the 2018 report said. “The Branch is also often consulted before a United States Attorney’s Office opens a preliminary investigation into a vote fraud allegation, although this is not required.”
Historically, “in investigating an election fraud matter, federal law enforcement personnel should carefully evaluate whether an investigative step under consideration has the potential to affect the election itself,” according to the latest edition of the Federal Prosecution of Election Offenses. “Starting a public criminal investigation of alleged election fraud before the election to which the allegations pertain has been concluded runs the obvious risk of chilling legitimate voting and campaign activities.”
But, with this exception to the policy, it gives federal prosecutors the leeway to announce investigations when postal workers or defense employees transport ballots.
“In that circumstance, corruption by federal personnel are already an interference in the state and local election process, and necessarily requires a federal overt remedy because it occurs outside most State and federal jurisdiction,” a source familiar with the policy told CNN.
Ross Garber, a conservative defense attorney who has represented high-profile Republican officials, said a lot will be riding on how the Justice Department applies the new policy over the next few weeks.
“It would be a mistake for DOJ to abrogate it’s longstanding, important policy of avoiding taking action that might influence elections,” Garber said in an email. “One can imagine circumstances in which prosecutors might be justified in taking public action or making public statements that directly involve elections issues, but those should be incredibly rare, only when necessary, vetted at the highest levels of DOJ, and scrupulously factual.”