A new spat between Bill Barr and a former U.S. attorney is yet more proof that relitigating 2020 will only drag the GOP down.
A new spat between Bill Barr and a former U.S. attorney is yet more proof that relitigating 2020 will only drag the GOP down.
O n Thursday, I had a column on the homepage about House minority leader Kevin McCarthy’s dithering over whether Republicans will participate in the House select-committee investigation of the January 6 Capitol riot. The problem, at root, is the vexing one we’ve explored a number of times before, most notably in connection with the House GOP caucus’s ouster of Liz Cheney from her leadership post: What to do about Donald Trump’s influence?
Another iteration of the infighting and dysfunction stemming from that influence was this week’s brouhaha caused by the former president’s false claim that Bill McSwain, the former U.S. attorney Trump appointed for the Eastern District of Pennsylvania (which includes the Philadelphia area), was blocked from investigating election fraud by Bill Barr, Trump’s former attorney general and current piñata of choice.
On Tuesday, President Biden gave his despicably demagogic speech at the Constitution Center in Philadelphia, equating state-level Republican election-law reforms with Jim Crow (see David Harsanyi’s excellent synopsis, as well as our editorial). The day before, in a blatant effort to undercut Biden while taking a shot at Barr, Trump released a letter from McSwain. Portrayed as if it were unsolicited, McSwain’s letter to Trump suggests that Barr stymied him:
On Election Day and afterwards, our Office received various allegations of voter fraud and election irregularities. As part of my responsibilities as U.S. Attorney, I wanted to be transparent with the public and, of course, investigate fully any allegations. Attorney General Barr, however, instructed me not to make any public statements or put out any press releases regarding possible election irregularities. I was also given a directive to pass along serious allegations to the State Attorney General for investigation — the same State Attorney General who had already declared that you could not win. I disagreed with that decision, but those were my orders. [Emphasis added.]
Notice, the letter does not say that Barr blocked McSwain from investigating election irregularities or anything else — because such a claim would have been absurd.
Just after the election, when President Trump’s “stolen election” flimflam had swung into high gear, Barr issued a directive authorizing all U.S. attorneys “to pursue substantial allegations of voting and vote tabulation irregularities” — expanding on authorizations the AG had previously issued to federal prosecutors in specific districts where election-fraud allegations had already been made.
At the time, the memo was seen as a controversial departure from the Justice Department’s usual sclerotic process, which calls for federal prosecutors to consult closely with the DOJ’s Election Crimes Branch (ECB). As a practical matter, such consultation would have made it impossible to establish genuine fraud, if there were any, before the statutory December deadline for state certification of electoral votes. Barr’s memo ignited the usual bursts of hysteria from the media–Democrat complex, further prompting the resignation of Richard Pilger, who had been named ECB chief during the Obama administration. Of course, as Barr later explained, had he not authorized thorough investigations, he would have lacked the persuasive force to tell the president, and the nation, that the Trump campaign’s sound and fury signified nothing in the way of material, provable election fraud.
Given the heat Barr took for authorizing U.S. attorneys to investigate election fraud, it is unsurprising that McSwain does not claim Barr precluded him from such investigations — though it is disappointing that McSwain would pen a letter that needs to be carefully parsed before the claim’s absence becomes clear.
The letter says Barr instructed McSwain “not to make any public statements or put out any press releases regarding possible election irregularities.” If Barr did give such an instruction, he would have been doing exactly what an attorney general is supposed to do. It is inappropriate for district federal prosecutors to make public comments about uncharged crimes. Under Justice Department protocols, U.S. attorneys’ offices must refrain from public statements unless and until charges are publicly filed — and even then, they are limited to commenting on what is pled in public court documents. Since McSwain’s investigations did not yield any prosecutable cases, there was nothing for him to discuss publicly.
In addition, McSwain says he was instructed by the DOJ “to pass along serious allegations to the State Attorney General for investigation.” But it would be curious if McSwain had actually had to be told that.
As anyone who has ever been a top official in a federal prosecutor’s office can tell you, elections are essentially governed by state law. It is not that the feds are indifferent to misconduct that could affect elections; rather, there are few federal cases because, by and large, voting irregularities are matters of state law, within the jurisdiction of state prosecutors. As Barr’s aforementioned memo asserts, “the States have the primary responsibility to conduct and supervise our elections under the Constitution and the laws enacted by Congress.” This proposition is not novel or credibly contestable. It is thus a commonplace for federal officials to coordinate with their state counterparts and to refer potential election-law offenses to the state authorities.
McSwain says he disagreed with the Justice Department’s instruction to refer misconduct to Josh Shapiro, Pennsylvania’s attorney general, because Shapiro (like other state officials, as the letter elaborates) was in the tank for his fellow Democrat, Biden. Yet all federal prosecutors can properly do when they lack jurisdiction over suspected misconduct is refer it to the officials who do have jurisdiction — the state prosecutors and investigators. If state law-enforcement fails to do its job, then you have something to complain about; but if you don’t give it a chance to do its job, then the underlying election crimes can’t be prosecuted at all.
In any event, McSwain’s letter could be construed — in a cynical “read between the lines” way — to imply that Barr might have used referral to the state as a pretext to prevent McSwain from investigating or bringing charges. McSwain, however, is careful not to accuse Barr of such a thing. That’s because it didn’t happen, and any intimation to the contrary could be easily refuted — it would be contradicted by both Barr’s memo and Pilger’s resignation.
Now, I hope you’re sitting down, because here comes the shocker.
McSwain’s letter goes on to explain that he is planning to run for governor of Pennsylvania next year. He is hoping for Trump’s support in what promises to be a crowded Republican field, which will include some ardently pro-Trump candidates — including Representative Mike Kelly, who spearheaded pro-Trump challenges to Biden’s Keystone State victory in both the state and federal courts. Moreover, it is well within the realm of possibility that the Democratic gubernatorial candidate will be Shapiro, the ambitious aforementioned attorney general who wears his Trump opposition like a badge of honor.
Although McSwain’s letter is dated June 9, Trump waited until the eve of Biden’s July 13 speech to publicize it. In conjunction with releasing it, Trump insisted, in a brief written statement, that the letter shows McSwain “was precluded [by Barr] from investigating election fraud allegations. Outrageous!”
The letter, of course, says no such thing. But Barr was still sufficiently curious about it that he spoke with McSwain on Monday.
As Politico reports, Barr says that when they talked, McSwain admitted that Trump had been pressuring him to portray Barr as an impediment to his office’s election-fraud probes. McSwain, Barr added, was trying to “thread the needle” in his letter: To refrain from clearly accusing Barr of directing him not to investigate and from saying “anything that would advance the [former] president’s stolen-election narrative” while still saying “some things that were literally, technically accurate,” i.e., things that Trump could twist to serve the stolen-election narrative.
On Twitter Wednesday, McSwain groused, “I have more important things to be concerned about than Bill Barr’s feelings.” Though he maintains that what is in the letter is “100% true,” McSwain’s tweets do not dispute Barr’s account of their conversation.
The point, plainly, is not whether the contents of the letter are true. What matters is that (a) even conceding the literal truth of his assertions, McSwain neither claims to have had a prosecutable voting-fraud case nor accuses Barr of suppressing investigations of election irregularities; and (b) it was obvious that Trump would distort these points in publicizing the letter, which he pressured McSwain to write.
That’s not the worst of it. McSwain was a strong U.S. attorney, who performed a real service in highlighting the perils of Larry Krasner, the progressive-prosecutor prototype elected by the blue, blue City of Brotherly Love to not enforce the law as Philadelphia’s district attorney. He should be an appealing Republican candidate for governor. That he believed it was worth writing a letter of this kind in order to court Trump’s support is disheartening, to put it mildly.
Even more dismaying, Trump did not pressure McSwain idly. His main agenda here is to get Trump backers in Pennsylvania to replicate the clown show in Maricopa County, where the pro-Trump Arizona state legislature has orchestrated an election “audit” that lacks even a shred of credibility.
If Republicans are going to have any chance of stopping the ruinous Democratic reign by winning in 2022 and 2024, they must stop relitigating the lost presidential election of 2020. Trump will never let that go, but Republicans have to. Keep in mind: across the nation, down-ballot conservative Republicans significantly outperformed Trump — whereas in Georgia, Trump single-handedly cost Republicans the Senate seats they needed to stop Biden’s demolition of the economy and conveyor-belt appointment of woke-progressive judges and bureaucrats.
Donald Trump cannot win the presidency again. He is popular in a number of places, but poison in most others. The former president will never again have what he’d need to win a national election: the reluctant support of doubters who, for the sake of stopping Democrats, were willing to take a chance on his flawed character. Had it not been for Trump’s bizarre post-election performance, culminating in the disgraceful Capitol riot, congressional Republicans would be in a position to stop Democrats right now — we wouldn’t be looking at another three to six trillion dollars down the drain (along with a stealth amnesty plan, a potential federal takeover of elections, and anything else on the progressive wish-list that they can manage to slam past the Senate parliamentarian).
The reasons for Trump’s political rise and the many positive aspects of his presidency hold important lessons for Republicans. But those positive aspects mainly involved enabling conservative advisers and subordinates to implement policy — often against his instincts, which are not conservative. The future of the party has to be conservative. If the future is Trump, it will no longer be the conservative party, and it will be in the wilderness for a very long time.