Twelve days before the election, an associate of William Barr’s argued to me that the Attorney General deserved credit for his performance during the final six weeks of the Presidential campaign. The associate contended that Barr, rather than reinforcing wild claims from Donald Trump that would have served the President’s reëelection effort, had gone quiet. In some ways, the associate was correct. In October, after President Trump publicly demanded that Barr launch a criminal investigation into Hunter and Joe Biden, the Attorney General took no action. Barr also declined to announce the results of an investigation by a federal prosecutor, John Durham, into the F.B.I.’s probe of the 2016 Trump campaign. This spring, in a move that infuriated Trump, Barr cleared Barack Obama and the elder Biden of any wrongdoing in 2016, stating, “I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man.” The associate insisted that Barr’s comments—and his silence—were intentional, and said, “The real October surprise is Bill Barr.” Unable to corroborate the claims and unsure of what to believe, I didn’t write a story about the conversation.
On Monday night, Barr’s apparent silence ended. The Attorney General issued a memorandum authorizing federal prosecutors to investigate the President’s specious claims of nationwide voter fraud, involving tens of thousands of ballots and, it seems, thousands of election officials in multiple states. The memo boosted the Trump campaign’s fantastical claims that the election fraud had occurred under the watch of two Republicans: the secretary of state in Georgia and the city commissioner overseeing the vote count in Philadelphia. Barr hedged in the memo, writing that “while serious allegations should be handled with great care, specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries.”
Richard Pilger, the Justice Department official who oversees investigations into election crimes, immediately quit. “Having familiarized myself with the new policy and its ramifications,” he wrote in an e-mail to colleagues obtained by the Times, “I must regretfully resign from my role as director of the Election Crimes Branch.” Barr’s memo, despite the caveats, violates a long-running Justice Department practice of not investigating election fraud until after local officials have completed counting and certifying the vote. The practice is designed precisely to prevent federal prosecutors from pressuring local officials to change the outcome of an election. In short, it is intended to prevent unhappy incumbents from subverting the democratic process.
Barr released his memo on the same day that he met Senate Majority Leader Mitch McConnell, who, in a speech on the Senate floor, defended the President’s right to challenge the election results. Just before McConnell’s speech, Trump had fired Defense Secretary Mark Esper, who has been viewed as insufficiently loyal since he failed to back Trump’s calls to deploy troops in American cities, against citizens protesting the police killing of George Floyd, last spring. Trump also appointed Michael Ellis, a partisan loyalist, to be the general counsel of the National Security Agency. Rumors swirled that Trump also plans to fire the F.B.I. director, Christopher Wray, and C.I.A. director, Gina Haspel. Meanwhile, Emily W. Murphy, a Trump appointee who is the administrator of the General Services Administration, said that the results of the election were not “clear” and blocked Biden aides from using office space in federal buildings to begin planning the transition of power.
Throughout the Trump Presidency, journalists have debated how to respond to the President’s conspiracy theories, provocations, and lies. Some advocated ignoring them, on the ground that reporting on them risks amplifying them. Others felt that the President’s false claims should be taken seriously; that ignoring them normalizes his behavior and inures Americans to the risks it represents. The President’s actions since Election Day are unprecedented. As my colleague Masha Gessen wrote, Trump is trying to achieve an “autocratic breakthrough” and to discredit the election results that would end his rule. His chances of succeeding appear low, but it is important to state that the President of the United States is attempting to carry out a coup.
Over the weekend, I spoke with a current Administration official. Echoing comments that Trump’s former chief of staff Mick Mulvaney had made to the Wall Street Journal, the official said that the President needs some time to process his defeat. In earlier conversations, the official had told me that Trump believes that career government officials are politically biased against him—and that Trump’s claims of a “deep state” coup are sincere, and not simply political posturing. The official added that he personally believes that although the tally has not been finalized, Trump has no path to victory; he thought that some voter fraud would be found in Pennsylvania—such as ballots cast using the names of dead people—but not on any scale that would reverse Biden’s victory. He speculated that, though Trump may never concede, he will voluntarily leave the White House, once he has lost in the courts.
On Tuesday, I spoke again with the Barr associate, who argued that the Attorney General was still defying the President’s will. The associate highlighted the parts of the memo that urged prosecutors to not launch investigations into “fanciful” or “far-fetched claims.” A former senior national-security official was less charitable, telling me on Tuesday that Barr had issued the memo to appease Trump. “I’m assuming he was under pressure from the White House to do something, and he wants to remain,” the official said. “I think he’s just doing the minimum to comply with Trump, but not actually doing anything. I think it’s theatre more than reality.”
Trump and Barr’s actions are politically dangerous. A new Politico/Morning Consult survey finds that seventy per cent of Republicans do not think the 2020 election was “free and fair.” False voter-fraud claims are gaining enormous audiences on Facebook, energizing and enraging the President’s supporters. And Barr, along with other Republican officials, is enabling it. By any measure, he is abdicating his responsibility, as the country’s chief law-enforcement officer, to uphold the rule of law, and violating his oath to protect and defend the Constitution. Following McConnell’s lead, he is recklessly dumping the problem on the judicial branch. At best, Barr is humoring the President, playing for time, and expects state and federal judges to stand up to Trump and dismiss his false claims. Odds are that the judges, particularly those with lifetime appointments, will do so. Still, there is no excuse for allowing a sitting President to flirt with authoritarianism.
Since Barr took office, I’ve hoped that he would prove his critics, including myself, wrong. He can still do so. No other Administration official has the power to discredit the President’s false legal claims. Barr will deserve praise if he proves to be the November surprise that Trump does not want—and the one that American democracy needs.
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