In the days since an inconclusive Election Night likely threw his presidency into the heap of one-termers, Donald Trump and some of his top political advisers have found another scapegoat to groan about: William Barr’s insufficiently subservient Justice Department.
As his team began launching legal and public-relations blitzes in several key states and contesting the still-undetermined 2020 presidential election this week, the president has grown impatient with the Department of Justice and its seeming unwillingness to immediately intervene on Team Trump’s behalf, according to two people familiar with his private comments. “Why isn’t [DOJ] on this?” Trump asked, during one of many recent tirades about his baseless claim that the Democrats are somehow stealing the election.
The president and his advisers’ displeasure at the Justice Department—which, to be clear, as part of the federal government is not supposed to be an adjunct of a particular political campaign—is another sign that the upper ranks of Trumpworld are desperately hoping that someone or something, somewhere, will come to their rescue and deliver a second term.
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Asked if she believes the Justice Department should intervene pronto, Jenna Ellis, a senior legal adviser to Trump and his re-election campaign, simply replied on Thursday, “That’s not my call,” adding that “the campaign is working to protect election integrity and ensure that every legal vote counts.”
Still, the desire within Trump’s senior staff for a swift intervention by Attorney General Barr was palpable on Thursday. As one senior aide on Team Trump tersely put it: “Our campaign sure does! We’re frustrated.” Asked by The Daily Beast about whether or not the Department of Justice should swoop in, John Dowd, who repped the president during the Mueller probe and remains an informal legal adviser to Trump, responded, “I hope so. I hope they’re on the job.”
The Trump campaign had filed lawsuits to halt vote counting in Michigan, Pennsylvania and Georgia when the president’s son tweeted for federal assistance. “Where is he** is the @FBI & @TheJusticeDept?” Eric Trump demanded to know Thursday.
That doesn’t mean the help won’t come eventually. Some Justice Department officials, particularly those who consider Barr little more than a Trumpist enforcer, have long predicted that senior Justice Department leadership would not sit on the sidelines while the Trump campaign contests election counts in court.
“The fact we haven’t seen it yet is not a comfort. Contorted constitutional-legal theories are Barr’s preferred modus operandi,” said a current federal prosecutor on condition of anonymity.
And while it hasn’t filed a motion to intervene so far, the Justice Department has tentatively waded into the campaign muck. A senior official, Richard Donoghue, informed federal prosecutors the morning after election night that the department reserves the right to order “armed federal law enforcement” to ballot-counting locations on the grounds of investigating potential vote fraud, The New York Times reported. Yet there has been no credible evidence of voter fraud, only a repeated insistence by the Trump campaign. In Georgia on Thursday, the first lawsuit filed by the campaign to stop the count was dismissed for baselessness in alleging misconduct.
It was only the latest instance of Barr’s Justice Department echoing the Trump campaign line. In late September, the department announced federal prosecutors in Pennsylvania’s Luzerne County were probing “potential issues with a small number of mail-in ballots” it explicitly claimed were Trump votes. State officials days later stated flatly that an error, not fraud, resulted in nine discarded military ballots.
Barr himself blazed the trail. Earlier in September, Barr falsely claimed to have indicted someone in Texas for falsifying 1,700 ballots. In reality, a Justice Department investigation of the incident found no fraud and pursued no charges. Barr’s office conceded the error.
The Justice Department did not respond to a request for comment. The FBI declined and referred comment to the Justice Department. Trump campaign and White House spokespeople did not immediately respond, either.
One factor inhibiting Justice Department intervention is the contradictory strategies pursued by Trump and his supporters in the various states where it suits them. In Georgia, Pennsylvania and Michigan—states where Joe Biden either has taken a lead or where still-unreported counties are expected to favor Biden—the campaign wants the count to stop. But in Arizona, where Trump expects unreported ballots to favor him, Trump supporters have been demanding to proceed with the count.
Intervention at such a fluid time runs the risk of federal courts establishing a rule that would work to the Trump campaign’s disadvantage in a different state. Incoherent legal approaches also risk putting federal judges—as well as Trump appointees to the Supreme Court—in untenable positions that might not yield the result Trump wants.
Barr, the federal prosecutor believes, prefers to “give the appearance that DOJ is not appearing in frivolous Giuliani lawsuits, or seen to be on the side of Eric Trump. He wants to give the impression that DOJ is restrained and responsible, and then when all votes are counted and he figures out which states matter, then he will invent some contorted legal theory that suits the facts of the states that matter for Trump.”
The prosecutor continued: “However contorted and meritless a legal theory Barr wants to press, he does know that whatever it is, it has to be consistent, and he can’t know what position to take right now. But you’ll know pretty soon.”
Elie Honig, the former federal prosecutor and CNN legal analyst, said any intervention from Barr would come only if the balloting margins are small enough that it could determine the outcome. If so, Barr would likely “lend DOJ’s heft” to Trump’s court cases, said Honig, who next year will publish a book about Barr and his legacy at Main Justice, Hatchet Man.
Outside of that, Barr could also push Trump’s lines about voter fraud. “Thus far, Barr has tried mightily to prop up the fraud narrative with a series of unsupported or untrue public statements. It seems there’s just nothing there, but he could keep trying,” Honig said.
As the Luzerne County example indicates, some U.S. attorneys, particularly in Pennsylvania, may be eager to jump into the fray. William McSwain, the federal prosecutor in Philadelphia, where Trump supporters are demanding access to the ballot count, last year baselessly accused the Philadelphia district attorney of being “Soros-funded.” A recent profile in Philadelphia magazine described McSwain, a relentless backer of the police, as likely to seek a GOP nomination for higher office.
And on Thursday night, the local Republican Party gave the Justice Department an invitation to intervene in the election. “Our lawyers just sent a criminal referral to AG Barr regarding at least 3,062 instances of voter fraud,” the party tweeted.
