The Trump administration’s Justice Department broke with long-standing norms during the 2020 election cycle by publicly commenting on an ongoing investigation into nine military mail-in ballots tossed into a dumpster in Pennsylvania, according to a report released Thursday by the agency’s inspector general.
The discarded ballots in Luzerne County became fodder for election conspiracies, with then-President Donald Trump using the investigation to sow doubt into whether the election could be conducted fairly. Trump later relied on such doubts to fuel his false claims that he had defeated Joe Biden in the election — claims he has continued to repeat during his current campaign for the White House.
On Sept. 24, 2020, U.S. Attorney for the Middle District of Pennsylvania David Freed took the unusual step of stating publicly that federal officials had launched an inquiry into the discarded ballots and that all nine ballots were cast for Trump. His statement was later retracted and amended to say that seven ballots were cast for Trump and the votes of the remaining two were unknown.
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Then-Attorney General William P. Barr encouraged Freed to make the statement, according to the report issued Thursday, even though Justice Department policy generally prohibits such comments on ongoing, uncharged investigations.
The purpose of the policy is to protect the privacy of people who are ultimately not charged with a crime and ensure that cases are only pursued based on evidence that would be allowed in a courtroom.
The Justice Department also releases an Election Year Sensitivities Memorandum during major election cycles reminding employees about the seriousness of making statements about election-related investigations during an election year. Barr had issued that memorandum to his employees months before encouraging Freed to make the statement, the report said.
Still, the inspector general concluded that Barr did not violate Justice Department policies, citing the “ambiguity regarding the applicability” of those policies. The report notes that the attorney general has the discretion to comment on ongoing criminal investigations “in the interest of the fair administration of justice.”
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Barr met with Trump before Freed made his statement, according to the report, and told Trump the discarded ballots were votes for him — details that had not yet been made public. The next day, Trump repeated that information on a national radio show.
While Barr’s briefing to the president was unusual — there is generally supposed to be a wall between the White House and Justice Department when it comes to criminal investigations to ensure they are not politically motivated — it also didn’t violate the department’s policies, the report said.
“Although we were troubled by the investigative facts about the Luzerne County matter that Barr relayed to President Trump in the briefing, we concluded, for reasons described below, that the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President where a communication is permissible under the policy, as we found was the case with Barr’s briefing,” the report states.
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Freed, however, violated department policy multiple times, the report says, failing to coordinate with the FBI before he issued his statement and making public a letter that he sent to the Luzerne County Bureau of Elections providing more details about the investigation than his statement did.
Freed, who was interviewed for the report, said he didn’t think about coordinating with the FBI in this instance since he had been dealing with Barr, the top person in the Justice Department.
Barr declined to be interviewed by the inspector general but sent a letter about the investigation, parts of which were included in the report. “I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation,” Barr wrote.
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The report was the second issued this week by the inspector general’s office, both dealing with Barr-era controversies that happened nearly four years ago. A report released Wednesday examined the softening of the sentencing recommendation for Trump confidant Roger Stone after he was convicted of lying to Congress.
Barr also declined to be interviewed for that report, which called his intervention in the case “extraordinary” but found no evidence of direct interference by Trump.
Freed got involved in the case after the Luzerne County district attorney’s office learned that a county elections employee had discarded completed mail-in ballots in a dumpster. The DA’s office said in a public statement at the time that it had discovered “issues with a small number of mail-in ballots” and that federal authorities were now leading the investigation.
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Barr called Freed twice and “encouraged and authorized” him to issue a statement, including that the ballots were cast for Trump, the report says.
Freed’s initial statement suggested that the person who discarded the ballots did so intentionally and could be charged with a crime. But according to the report, Freed and top Justice Department officials knew early on that the suspect had mental health issues and appeared to have discarded the ballots by mistake.
In other words, the report says, Freed issued the statement with Barr’s encouragement knowing that the suspect would likely not be criminally charged.
“Indeed, the Department determined before Election Day that no charges would be brought in the matter, although it failed to inform the public of that fact until well after the election,” the report states.
The report recommends that the Justice Department update its policies to spell out what information employees may include in statements about investigations when they deem a public statement is necessary; and make clear whether the attorney general is exempt from any department policies.
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