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Bill Barr’s Election Memo: Justice Delayed

Read the attorney general not literally, but seriously.
November 10, 2020
Bill Barr’s Election Memo: Justice Delayed
WASHINGTON, DC - NOVEMBER 09: Attorney General Bill Barr leaves the US Capitol after meeting with Senate Majority Leader Mitch McConnell (R-KY) in his office on November 9, 2020 in Washington, DC. The Senate is reconvening for the first time after the 2020 Presidential Election and a coronavirus relief package is high on their list of priorities. (Photo by Samuel Corum/Getty Images)

Attorney General Barr’s new memo, on Department of Justice investigations of alleged misconduct in the elections, sends a message. Actually, it sends two messages. And that is the problem.

Yesterday, the attorney general issued a memo to the FBI director, the DOJ’s leaders in Washington, and the U.S. attorneys responsible for federal prosecution across the country. The memo, titled “Post-Voting Election Irregularity Inquiries,” set general guidelines for investigations into “substantial allegations of voting and vote tabulation irregularities.” It certainly pleased President Trump, who tweeted a link to Breitbart.com’s enthusiastic article about it. (On Tuesday, Trump retweeted Breitbart’s reiteration: “Let’s Roll.”)

Others were less enthused. Richard Pilger, director of the DOJ’s electoral crimes branch, resigned in protest: “Having familiarized myself with the new policy and its ramifications,” he wrote, “and in accord with the best tradition of the John C. Keeney Award for Exceptional Integrity and Professionalism (my most cherished Departmental recognition), I must regretfully resign from my role as Director of the Election Crimes Branch.” Mr. Pilger, who not only worked on U.S. electoral crimes but also previously worked on U.S. anti-corruption efforts in Georgia—the former Soviet state, not the American one—clearly did not like what he saw in the memo.

Reading Barr’s memo, however, one finds no shortage of caveats and constraints. The memo’s defenders surely will emphasize them, and with good reason. The attorney general does not explicitly endorse any of the scattered, dubious allegations being thrown around by President Trump and his supporters; indeed, the memo states that “nothing here should be taken as any indication that the Department has concluded that voting irregularities have impacted the outcome of any election.” Moreover, the memo admits that it would be unlikely for any alleged electoral misconduct, if even true, to rise to a level justifying investigation before the election process has completely finished: “most allegations of purported election misconduct are of such a scale that they would not impact the outcome of an election.”

And so the Barr memo only authorizes investigations of “substantial” allegations of “voting and vote tabulation irregularities”; only 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.” Surely questions will be asked about what qualifies as “apparently-credible” allegations, and Barr leaves much discretion in the hands of individual prosecutors (“U.S. Attorneys maintain their inherent authority to conduct inquiries and investigations as they deem appropriate”). But the attorney general’s office clearly took great pains to phrase this memo carefully, limiting its authorization with details and caveats. Anyone who reads this memo from start to finish will see these nuances.

But what about the people who don’t read the memo—or, more specifically, who only read its top lines, and the news coverage or Facebook posts or tweets that it spurs? Those audiences surely will interpret this memo quite differently. (Some, of course, already have.) The mere fact that the attorney general has issued it will be taken by many as lending credence to the notion that any particular investigations are warranted already. The attorney general doesn’t say so, but he doesn’t say otherwise. Indeed, his memo’s emphasis of the importance of pursuing only “substantial” allegations of misconduct is followed by a vague mention that “I have already” authorized investigations “in specific instances,” leading the public only to wonder what these “substantial” allegations might be.

Furthermore, the memo’s stated premise points in a particular direction. After opening with a paean to “the strength of our democracy,” Barr warns that “it is imperative that the American people can trust that our elections were conducted in such a way that the outcomes accurately reflect the will of the voters.” And he closes on a similar note, “emphasiz[ing] the need to timely and appropriately address allegations of voting irregularities” so that the American people “can have full confidence in the results of our elections.” Clearly Barr’s memo is a response to those who, in the aftermath of Joe Biden’s election, suddenly feel less confidence in the election itself.

Beginning, of course, with the president himself. The president surely has not and will not read the full two-page memo, replete with caveats and nuance. But he might well read the memo’s subject line, presented in all caps and underlined: “POST-VOTING ELECTION IRREGULARITY INQUIRIES.”

It is a striking title, given the memo’s nuanced substance. With all of its caveats and limitations, the memo could rightly have been titled “Prohibiting Unsubstantiated Election Inquiries,” or (to borrow a phrase from the memo) “The Justice Department’s Absolute Commitment to Fairness, Neutrality, and Non-Partisanship.” But the memo’s author chose very different title, one that puts “ELECTION IRREGULARITY” front and center.

Over the last two years, Attorney General Barr’s words and actions have often been cast unfairly, in the worst possible light. A cloud of doubt and suspicion immediately surrounds everything he does. Sometimes he is unequivocally wrong, as in the government’s manhandling of protesters outside Lafayette Square in June. Sometimes he is right, as in his resistance to congressional encroachment upon the Justice Department. And often he just does what lawyers usually do: obscure simple points with complicated caveats, digressions, and hedges.

There are times when the attorney general is much more blunt, much less ambivalent: his Notre Dame speech defending religious liberty and denouncing “moral chaos” in America today; his Federalist Society speech denouncing Congress’s overreaches and the anti-Trump “Resistance” in general. No one could mistake the messages he was sending on those occasions.

But the week after the election, with so many people trying to delegitimize the clear outcome, was not such an occasion. The attorney general published a memo that sent very different messages to different people. Perhaps the DOJ will someday issue a clearer statement, rebuking the glib conspiracy theories and those who are now reveling in them. But until then, Justice delayed will be justice denied.

Adam J. White

Adam J. White is a resident scholar at the American Enterprise Institute and director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.