Barr: No Proof of Massive Election Fraud

T hough they have been investigating, the Justice Department and the FBI have found no evidence of widespread election fraud, Attorney General Bill Barr told the Associated Press in an interview on Tuesday. Barr was not saying that there was no proof of fraud. “To date,” however, he asserted that “we have not seen fraud on a scale that could have effected a different outcome in the election.”

Under circumstances where investigations are still pending, Barr’s blunt statement seems unusual. But it appears to be a response to President Trump’s continuing allegations about a massively “rigged” election, and specifically to his complaints over the weekend that the Justice Department and the FBI were “missing in action” as far as investigating his campaign’s claims was concerned.

That was an odd allegation for the president to make. The attorney general has not only periodically warned about the fraud-laden potential of this pandemic-plagued election cycle, where mail-in voting was adopted to an unprecedented extent. He also took no small amount of flak a few weeks back for directing the nation’s federal prosecutors to probe any “substantial allegations” of improprieties in the conduct of the election.

Sure enough, the Trump campaign legal team responded to Barr’s statement on Tuesday by again claiming “there hasn’t been any semblance of a Department of Justice investigation.”

The Justice Department and the FBI have been investigating. They just haven’t uncovered sufficiently substantial evidence to bring significant prosecutions.

That should surprise no one. It is harder to make a criminal case than a civil case. Despite the extravagant public statements made by the president and his legal team about mounting evidence of fraud, the claims they have posited in civil lawsuits have been far more modest. And those lawsuits have been rejected by state and federal courts.

As I’ve detailed, the Trump campaign filed a federal suit claiming fraud in Pennsylvania. The campaign dropped the fraud counts in advance of the first hearing before the judge. At that proceeding, moreover, Rudy Giuliani, the president’s lead counsel, conceded to the court that this was “not a fraud case” and that the campaign, despite suggestions to the contrary, was not claiming otherwise. Ultimately, the suit was thrown out by the district court, and a narrow appeal was rejected by the Third Circuit. Though it said it was anxious to get the case to the Supreme Court, the campaign has thus far refrained from seeking review there.

The campaign filed another federal lawsuit in Michigan. It was dropped shortly after a judge threatened to dismiss it for failure to prosecute because the campaign did not serve its complaint on the state attorney general. The campaign claimed that it was dropping the case because it had gotten the relief it sought when Republican canvassers in Wayne County sought to rescind their vote to certify the election results there. In reality, though, there was no rescission (there being no procedure for such a thing in Michigan law), and the statewide vote in favor of President-elect Joe Biden has since been certified as well.

To date, the campaign has not attempted to revive the suit.

Civil cases do not have a very demanding standard for making allegations, and a claimant need only prove the case by a preponderance of the evidence. In marked contrast, the law requires probable-cause evidence of a crime before criminal charges can properly be brought. Moreover, before they may properly seek a grand-jury indictment and take a criminally accused defendant to trial, prosecutors must believe there is enough evidence to surmount the hurdle of proof-beyond-a-reasonable-doubt required for conviction.

In his remarks to the AP, Barr appeared specifically to address the claims of massive cyber-fraud advanced by attorneys Sidney Powell and Lin Wood, although he mentioned neither of them by name:

There’s been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the [Department of Homeland Security] and DOJ have looked into that, and so far, we haven’t seen anything to substantiate that.

Besides that, the attorney general appeared to address claims of significant, but less sweeping, fraud that have been bandied about. “Most claims of fraud are very particularized to a particular set of circumstances or actors or conduct,” he explained. “They are not systemic allegations. And those have been run down.” He added that some of these claims “have been broad and potentially cover a few thousand votes.”

Investigators have followed up those leads, he said. Nevertheless, nothing has been uncovered that would put the outcome of the election in doubt.