President Donald Trump has refused to concede the election to Joe Biden, making unsubstantiated claims that he only lost because of fraud — and top Republicans are beginning to sound at least somewhat sympathetic to him.
On Monday, Attorney General Bill Barr gave special authorization for US attorneys to investigate “substantial” allegations of election fraud, in a departure from the Justice Department’s typical practice of waiting until election results are certified to avoid influencing the results. After meeting with Barr, Senate Majority Leader Mitch McConnell said in a speech on the Senate floor that Trump was “100 percent within his rights to look into allegations of irregularities and weigh his legal options,” adding that “the courts are here to work through concerns.”
Later on Monday, news broke that Richard Pilger, the career Justice Department official who headed the Election Crimes Branch, resigned from his post in protest of Barr’s move, writing in an email to colleagues that the new guidance was “abrogating the forty-year-old Non-Interference Policy for ballot fraud investigations.” (Pilger has not resigned from the department entirely, though, just from his particular post.)
It’s unclear whether Barr’s authorization of election fraud investigations will lead to anything at all, much less a second term for Trump. To get to 270 electoral votes, Trump would need to somehow overturn the outcome in at least three states where Biden leads by 10,000 votes or more. Among the many (largely dubious) claims of election irregularities the president’s legal team has made so far, there’s nothing close to a claim that would disqualify that many votes.
So it’s possible that this is an exercise mainly meant to humor the president and/or satisfy the Republican Party’s base — which, though it may be damaging to public confidence in the election system, won’t actually prevent Biden from being sworn in.
The more dangerous scenario would be as follows. First, Trump’s team or Justice Department officials lay out exaggerated or misleading claims of “fraud” to cast a cloud over the outcome in key states. Second, partisan Republican-appointed judges or GOP state legislators respond to these claims by blocking the certification of those key states for Biden.
To be clear, it seems unlikely that this would happen. Biden’s leads are probably too big in too many states. But it’s clearly what Trump wants to happen. And with December 8 as the deadline for states to certify election results, the president has four weeks to try to pull it off.
Bill Barr’s memo, explained
After a relatively quiet few weeks leading up to the election, Barr barged back into the political fray with a sudden change to the Justice Department’s practices on investigating potential election fraud. Barr laid out the change in a memo to US attorneys on Monday (you can read the full text of it at this link).
The practical change is that US attorneys now have blanket permission to investigate voting and vote-tabulation irregularities on their own. Before this, the general guidance was that federal prosecutors should consult with the department’s Elections Crimes Branch and wait to take overt investigative steps until the election results are certified, as a way to avoid influencing the outcome.
There are some important caveats, though. Barr wrote that any investigation “of claims of irregularities that, if true, would clearly not impact the outcome of a federal election in an Individual state” should be delayed until after certification. He also wrote that “specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries,” adding that “nothing here should be taken as any indication that the Department has concluded that voting irregularities have impacted the outcome of any election.”
Despite these qualifications, Pilger, the head of the department’s Election Crimes Branch, was sufficiently disturbed by Barr’s memo to step down from his post soon after Barr sent it. Pilger wrote in an email to colleagues that the change meant “abrogating the forty-year-old Non-Interference Policy for ballot fraud investigations in the period prior to elections becoming certified and uncontested.” He added that, having familiarized himself with the policy, he “must regretfully resign” from his role.
“I have enjoyed very much working with you for over a decade to aggressively and diligently enforce federal criminal election law, policy, and practice without partisan fear or favor,” Pilger added, seeming to imply something different was now going on.
Here is Richard Pilger's email to his colleagues. pic.twitter.com/dXZqzMbG6f— Vanita Gupta (@vanitaguptaCR) November 10, 2020
The case for Barr’s change is this: If there actually was voter fraud on a scale large enough to impact the outcome of this election, it would be good to know that quickly. (Again, this seems extremely unlikely given that tens of thousands of votes would have to be affected across at least three states.)
But the reality is, the president has been making completely baseless assertions for months that there would be widespread voter fraud, and he continues to do so in an effort to explain his loss. And Barr and top Justice Department officials have often shown themselves — often dubiously — as eager to back up the president’s talking points.
Barr himself has opined that fraud in mail voting is widespread. And back in September, when a local office in Luzerne County, Pennsylvania, opened and discarded nine ballots due to a contractor mistake, the US attorney for that district inserted himself into the matter, making unusual, partially erroneous public statements about his ongoing investigation.
So will Trump and Barr’s US attorneys truly play it straight with any investigation into voter fraud? Or will they mislead the public and/or misstate their findings in an effort to help the president politically — as Barr did with his letter framing special counsel Robert Mueller’s Trump-Russia report?
What Mitch McConnell said
The networks may have called the election for Biden on Saturday, but few leading Republicans have done the same. Just a handful of GOP senators — Mitt Romney (R-UT), Lisa Murkowski (R-AK), Susan Collins (R-ME), and Ben Sasse (R-NE) — issued statements congratulating Biden, and even they tended to stress that Trump has the right to pursue legal challenges.
But in a Senate floor speech Monday, McConnell laid out his own take on the election results — and he’s not ready to congratulate Biden just yet.
“President Trump is 100 percent within his rights to look into allegations of irregularities and weigh his legal options,” McConnell said. “And notably, the Constitution gives no role in this process to wealthy media corporations. The projections and commentary of the press do not get veto power over the legal rights of any citizen, including the president of the United States.”
McConnell’s speech wasn’t a call to arms, exactly. He didn’t endorse Trump’s claims of voter fraud. He merely said that if Trump thinks there’s fraud, he can look into it and sue if he wants to. “The courts are here to work through concerns,” McConnell said. “This process will reach its resolution. Our system will resolve any recounts and litigation.”
But his message seemed to emphasize support of Trump’s rights and criticism of Democrats. And as one of the highest-ranking Republicans in Washington, it sent a message to many other GOP members of Congress out there: You don’t need to rush and declare this over just yet.
McConnell also met with Barr on Capitol Hill on Monday. It is not known what they discussed.
What’s really going on here?
So how should we think about all this?
One explanation that’s been put forth is that Republicans are trying to humor the president while understanding he’s headed for the exit. One anonymous senior Republican official told the Washington Post’s Ashley Parker just that, claiming, “No one seriously thinks the results will change.”
“What’s the downside of humoring him for this little bit of time? He went golfing this weekend... He’s tweeting about filing some lawsuits; those lawsuits will fail; then he’ll tweet some more about how the election was stolen; then he’ll leave.” https://t.co/cZ8NAfjJuN pic.twitter.com/4caafUTDc2— Ashley Parker (@AshleyRParker) November 10, 2020
Of course, the downside would be that Republican voters lose confidence in the election system — a Politico/Morning Consult poll has already found that 70 percent of Republicans say they don’t believe the 2020 election was free and fair.
A second explanation is that this is about playing to the base. The Washington Examiner’s David Drucker reported that “Republican insiders privately concede Biden ousted Trump,” but they’re reluctant to acknowledge that because they fear “a rebellion by grassroots conservatives loyal to President Trump that would sink the party’s Senate majority.”
Indeed, those two special elections in Georgia in January are surely on McConnell’s mind, as they’ll determine whether he’s Senate majority leader or minority leader next year. But even beyond Georgia, Republicans are aware their base loves Trump, and that if they’re perceived as being disloyal or having stabbed him in the back, they could pay the price in future primaries. Theoretically, the hope here might be that Trump will eventually decide to throw in the towel, so they don’t have to publicly undercut him before that. And maybe he will.
But what if Trump doesn’t want to throw in the towel?
Currently, Biden leads by about 146,000 votes in Michigan, 45,000 votes in Pennsylvania, 36,000 votes in Nevada, 20,000 votes in Wisconsin, 14,000 votes in Arizona, and 12,000 votes in Georgia. For Trump to get 270 electoral votes, he would have to change the outcome in at least three of those states — a tall order.
Trump also faces a deadline: December 8, when states have to have their election results certified. (Six days after that, on December 14, the Electoral College will vote, setting its results in stone. Congress has the role of counting those electoral votes in January, but it would take a majority in both the House and Senate to sustain any objection to the initial count.)
So Trump evidently hopes he can concoct a narrative of fraud that will win over Republicans — and that some combination of Republican state officials, legislators, and judges will block the certification of results in key states for Biden.
That seems far fetched. Trump’s suits have had little legal success so far, Republican state officials involved in the counts have insisted they’ve found no fraud, and some GOP leaders in state legislatures have said they won’t or can’t change the outcome. But Trump has four more weeks to try to change their minds.