November 10, 2020
LANSING – On the heels of a turbulent election, U.S. Attorney General Bill Barr sent a memo to his employees with a directive that overturns a decades-long policy, calling for U.S. Department of Justice staffers to investigate reports of election fraud before all ballots are counted.
In response to Barr’s guidance, Michigan Attorney General Dana Nessel issued the following response:
“Yesterday, U.S. Attorney General Bill Barr issued a memorandum to Department of Justice staff and U.S. Attorneys and staff that reversed a DOJ policy that has stood for 40 years. Under this policy, the DOJ’s Election Crimes Branch has declined to investigate election fraud until the election is concluded, the results certified, and contests and recounts resolved. With yesterday’s memo, DOJ policy allows investigations of ‘voting and vote tabulation irregularities’ before elections are certified.
“Given the timing of this memo and the current atmosphere surrounding the recent election, the intention is clear. This change in policy is not intended to better serve the people of the United States by ensuring that justice is done, but rather to signal to the President that his irresponsible and unsupported insistence that he won his race for reelection is taken seriously. There have not been an unusual number of credible claims of voting irregularities this election, and there have been no credible claims of vote tabulation irregularities, such as would justify an abrupt change in a longstanding policy.
“After the memo was released, Richard C. Pilger, the director of the DOJ’s Election Crimes Branch, resigned that position rather than agree to participate in a politicized election investigation process. I applaud Mr. Pilger and any other DOJ staff, U.S. Attorneys, and Assistant U.S. Attorneys who have the courage to put their ethical obligations first.
“As Michigan’s top law enforcement official, I know that my duty is to the people of this state, not to my friends or political allies. Where my office has learned of apparently credible allegations of crimes, I have not hesitated to order investigations and, when appropriate, prosecutions without regard to the political affiliation of those suspected. For example, earlier this year my office prosecuted the elected prosecuting attorney of Macomb County, a Democrat, for embezzlement. And we prosecuted the City Clerk of Southfield, also a Democrat, for election fraud. I do this because I know the People did not elect me to help Democrats and hurt Republicans, but to protect all Michiganders from those who betray the public trust.
“And by the same token, I have never ordered and would never order an investigation or prosecution of any person based on their political affiliation. I am not alone in this—my Republican and Democratic predecessors in office have prosecuted Republicans and Democrats alike when prosecution is merited, and declined to prosecute political opponents for political reasons.
“The purpose of the longstanding DOJ policy delaying election fraud investigations is to avoid casting unwarranted doubt on the legitimacy of the democratic process. And likewise, the purpose of yesterday’s memo is to assist the President in his current efforts to do just that: to cast unwarranted doubt on the legitimacy of the democratic process. Worse than that, however, the memo is transparently a favor to the President, as it lends a misplaced air of legitimacy to his baseless claims of massive widespread voter fraud in Michigan and elsewhere.
“Government attorneys, and prosecutors especially, are vested with awesome power, and with that power comes a grave duty to ensure that that power is used properly—to protect the public, to see that justice is done, and to enforce the law without fear or favor. For Attorney General Barr to reverse a longstanding DOJ policy in an effort to bolster the political case of the President of the United States represents an abdication of this duty.
“Ever since the Watergate scandal almost 50 years ago, the Department of Justice has understood the importance of operating as independently as possible from the President. In 1978, then-Attorney General Griffin Bell remarked that ‘the President is best served if the Attorney General and the lawyers who assist him are free to exercise their professional judgments. Just as important, they must be perceived by the American people as being free to do so.’ Former Attorney General Eric Holder has recognized, ‘There has to be a wall between political operatives in the White House and investigators at Justice. History has shown us that when that wall is too low, that’s when Justice Departments get in trouble.’
“It is a hallmark of authoritarian regimes around the world that those who wield the power to bring criminal prosecutions act as tools of the political leaders who have appointed them, rather than as servants of the people. When that happens in the United States, it is not just the Justice Department that is in trouble—we all are. Yesterday’s memo from Attorney General Barr is only the latest example in an increasingly and dangerously politicized Department of Justice.
“Let me be clear—the November elections in Michigan ran as smoothly as ever. Irregularities occur in every election, but there are multiple layers of protection to ensure that these irregularities are caught and rectified. Most of these are simple human error, not crimes—in several examples throughout the state we have found election workers making inadvertent errors that would have given more votes to the candidate of the opposite party. In other instances, my office has investigated and prosecuted election fraud, when people have been caught fraudulently requesting ballots, for example. But in every case, the mechanisms in place to protect the integrity of our elections have worked, and no improper votes have been counted. Nor are there any instances of irregularities in the process of counting the votes, only evidence-free allegations, wild speculation, and conspiracy theories.
“My office remains committed to enforcing the election laws—and all laws—without regard to the favor of any political party or official. I am disappointed that Attorney General Barr is exercising the power he is entrusted with to serve the President, rather than the People he was appointed to serve.”