Nameless Visitor Lawyer Contributor
On November 9, 2020 (six days after the final presidential election), former Lawyer Normal William Barr directed a few of his key subordinates to analyze election irregularities, liberating them up to take action by overruling a previous inside Division of Justice (“DOJ”) coverage that ordinarily pushed out such investigations till solely after the related election had ended, been licensed, and all election contests in court docket had completed. See Attorney General, Memorandum for United States Attorneys, The Assistant Attorneys General for the Criminal Division, Civil Rights Division, National Security Division, Director, Federal Bureau of Investigation (Nov. 9, 2020).
The November 9 Memo ignited a media firestorm. See, e.g., Matt Zapotofsky & Devlin Barrett, Barr Clears Justice Dept. to Investigate Alleged Voting Irregularities as Trump Makes Unfounded Fraud Claims, Washington Post (Nov. 9, 2020); Kevin Johnson & Kristine Phillips, Attorney General William Barr’s Election Fraud Memo Brings New Storm to Justice Department, USA Today (Nov. 10, 2020). Certainly, a senior profession supervisor at DOJ resigned in protest of the November 9 Memo. See Bill Chappell, Head Of DOJ’s Election Crimes Unit Steps Down After Barr OKs Election Inquiries, NPR (Nov. 10, 2020) (“Richard Pilger resigned as head of the Justice Division’s election crimes department Monday night time, protesting Lawyer Normal William Barr’s memo authorizing federal prosecutors to pursue allegations of voting irregularities.”). Pilger had edited the 2017 version of DOJ’s strategy to federal election crimes. See Federal Prosecution of Election Offenses (8th ed. Dec. 2017).
Then, on December 1, 2020, information emerged of an unique interview AG Barr had given to a single chosen reporter on the Related Press. “The news, which was printed on Dec. 1, 2020, quoted Barr as saying that the U.S. Justice Division had uncovered no proof of widespread voter fraud that might change the end result of the 2020 election.” David Bauder, The Story Behind the AP Report That Caused Trump to Throw Lunch, AP (June 28, 2022).
See November 9 Memo at 2 (“You’re the most senior leaders in the US Division of Justice and I belief you to train nice care and judgment in addressing allegations of voting and vote tabulation irregularities.”).
This may trigger one to imagine that Barr and his related subordinates had totally investigated the 2020 election pursuant to the November 9 Memo, discovered nothing after lower than one month had elapsed, and that one way or the other Barr got here to the conclusion it was correct for him to announce the outcomes of his November 9 Memo course of on December 1, 2020 not at a normal press convention the place he would have been subjected to questioning from reporters of all stripes however solely through a single mouthpiece-like AP reporter.
Vital new info coming to gentle starting in 2021, nonetheless, casts severe doubt on any such facile conclusion. Particularly, the US Lawyer in Philadelphia (the Japanese District of Pennsylvania), William McSwain, signifies he was informed by Barr to proceed in a style that contradicts the November 9 Memo. And equally, the White Home liaison to the Justice Division, Heidi Stirrup, has testified that Barr freely informed her that he was guiding the Justice Division utilizing a coverage very completely different than the one placed on paper within the November 9 Memo.
Lastly, former U.S. Lawyer Byung Pak of the Northern District of Georgia has a extra difficult story to inform however it boils all the way down to the truth that he carried out a single, very slender investigation into a part of one election irregularity on the State Farm Enviornment in Fulton County, Georgia however in any other case didn’t bestir himself (nor was he ordered) to take a look at different irregularities equivalent to issues with signature matching on mail-in ballots or the false foundation propagated to ballot watchers on the State Farm Enviornment permitting a Democrat Occasion-dominated Fulton County set of election employees to depend ballots on November 3-4, 2020 with out remark by the opposing political celebration.
The divergence between the November 9 Memo’s printed phrases and what was really happening behind the scenes on the Justice Division in 2020 into early 2021 raises severe questions that Barr and his related subordinates should be known as to reply by Congress. In sum, why did the formal November 9 directive inform DOJ officers to do one thing completely different than Barr really allowed them to do in observe? Shouldn’t Barr and his related underlings come clear on that and shouldn’t the present DOJ, which controls the recordsdata, launch the proof detailing all 2020 efforts to analyze the final presidential election? The American folks should know what was really investigated, extra importantly what was not investigated, and what the outcomes had been.
The November 9 Memo
As famous, former AG Barr issued an election investigation memorandum on November 9, 2020. The November 9 Memo started by stressing that “it’s crucial that the American folks can belief that our elections had been carried out in such a manner that the outcomes precisely mirror the desire of the voters.” November 9 Memo at 1. The Memo then addressed how the Justice Division’s function and election federalism interface: “Though the States have the first duty to conduct and supervise elections below our Structure and the legal guidelines enacted by Congress, the US Division of Justice has an obligation to make sure that federal elections are carried out in such a manner that the American folks can have full confidence of their electoral course of and their authorities.” Id. It’s tough to disagree with both of those platitude-like statements.
From that premise, the November 9 Memo said that the Justice Guide (a steering doc up on the net here) and insurance policies of the Prison Division’s Public Integrity Part’s Election Crimes Department (ECB) had established a coverage such that “overt investigative steps ordinarily shouldn’t be taken till the election in query has been concluded, its outcomes licensed, and all recounts and election contests concluded.” Id. On paper, the previous Lawyer Normal rejected that strategy stating:
Such a passive and delayed enforcement strategy can lead to conditions through which election misconduct can not realistically be rectified. Furthermore, this ECB observe has by no means been a tough and quick rule, and case-specific determinations and judgments should be made. Whereas most allegations of purported election misconduct are of such a scale that they’d not influence the end result of an election and, thus, investigation can appropriately be deferred, that’s not at all times the case. Moreover, any considerations that overt actions taken by the Division may inadvertently influence an election are tremendously minimized, in the event that they exist in any respect, as soon as voting has concluded, even when election certification has not but been accomplished.
This all sounds good and it was clearly an necessary step (even when it was performed purely on a parchment foundation) to reverse a wrongheaded DOJ Prison Division coverage designed to affirmatively foster impotence within the face of election fraud.
The November 9 Memo then approved motion: “I authorize you to pursue substantial allegations of voting and vote tabulation irregularities previous to the certification of elections in your jurisdictions in sure instances, as I’ve already performed in particular cases. Such inquiries and opinions could also be carried out if there are clear and apparently-credible allegations of irregularities that, if true, may doubtlessly influence the end result of a federal election in a person State.” Id. at 1-2. To date, so good.
Word as effectively that the November 9 Memo signifies that it doesn’t wish to intrude with investigations U.S. Attorneys of their respective districts suppose applicable: “Whereas U.S. Attorneys keep their inherent authority to conduct inquiries and investigations as they deem applicable, it can doubtless be prudent to begin any election-related issues as a preliminary inquiry, in order to evaluate whether or not accessible proof warrants additional investigative steps.” Id. at 2.
The Memo concluded with the commonsense admonition: “[S]pecious, speculative, fanciful or far-fetched claims shouldn’t be a foundation for initiating federal inquiries.” Id.
The First Crack within the Official Story
On June 9, 2021, the previous U.S. Lawyer in Philadelphia (the Japanese District of Pennsylvania), William M. McSwain, wrote to former President Trump to poke holes in Barr’s official story that he had performed his finest and rode herd on different DOJ officers to do the identical to analyze the 2020 presidential election irregularities. See Letter from William M. McSwain to President Trump (June 9, 2020) (McSwain June 9, 2021 Letter).
McSwain started the June 9 Letter by reminding President Trump of his accomplishments within the election fraud space: “Within the spring of 2020, I prosecuted and received an election fraud case towards a Decide of Elections in South Philadelphia who was stuffing the poll field. I additionally charged the political guide (a former Democratic Congressman) who was paying bribes to the Decide to stuff the poll field.” Id. at 1. A Justice Division press launch memorializes McSwain’s efforts. See U.S. Attorney William M. McSwain Announces Election Fraud Charges Against Former U.S. Congressman and Philadelphia Political Operative (July 23, 2020) (July 23, 2020 EDPA Press Launch).
McSwain then turned to the topic of the 2020 election:
President Trump, you had been proper to be upset about the way in which the Democrats ran the 2020 election in Pennsylvania – it was a partisan shame. The Governor, the Secretary of the Commonwealth, and the partisan State Supreme Courtroom made up their very own guidelines and didn’t comply with the legislation. Even worse, the State Lawyer Normal, Josh Shapiro – the very individual liable for the enforcement of state election legislation – declared days earlier than Election Day that you possibly can not win the election. It will be arduous to think about a extra irresponsible assertion by a legislation enforcement officer, particularly throughout a hotly contested election. In gentle of such statements, it’s hardly stunning that many Pennsylvanians lack religion in our state’s election outcomes.
McSwain June 9, 2021 Letter at 1.
The issue of the Commonwealth of Pennsylvania “making up its personal guidelines,” opposite to these established previous to and for the election by the Pennsylvania Legislature was a veritable nest of irregularity. The Justice Division clearly may have investigated these rule modifications, civilly or criminally, and on the very least filed amicus briefs or statements of curiosity in election contests in federal and/or state courts in Pennsylvania indicating that such rule modifications had been unconstitutional, suspicious, and one-sided of their influence. But the Justice Division by no means did so. Nor did the Justice Division, it could appear, ever deign to analyze the substantial election-rigging results of the Zuckerbucks Program, which was assailed in a number of complaints popping out of think-tank world (filed on September 22, 2022) to the IRS. See Individual Complaint & Entities Complaint. See typically Mollie Hemingway, Rigged: How the Media, Massive Tech, and the Democrats Seized Our Elections (2021).
Former U.S. Lawyer McSwain then obtained extra granular in documenting his complaints about Barr to former President Trump:
On Election Day and afterwards, our Workplace obtained varied allegations of voter fraud and election irregularities. As a part of my obligations as U.S. Lawyer, I needed to be clear with the general public and, after all, examine totally any allegations. Lawyer Normal Barr, nonetheless, instructed me to not make any public statements or put out any press releases concerning doable election irregularities. I used to be additionally given a directive to go alongside severe allegations to the State Lawyer Normal for investigation – the identical State Lawyer Normal [and current Democrat Governor of Pennsylvania] who had already declared that you possibly can not win.
Id. (emphasis added).
In different phrases, McSwain needed to analyze quite a few allegations of fraud and different irregularities. But Barr denied him the flexibility to take action. This violates the November 9 Memo itself, the place Barr mentioned that “U.S. Attorneys keep their inherent authority to conduct inquiries and investigations as they deem applicable ….” November 9 Memo at 2 (emphasis added). McSwain was not permitted to proceed as he deemed applicable, however solely as Barr deemed applicable.
Moreover, by instructing McSwain to show over proof of “vote fraud and election irregularities” to the Democrat Pennsylvania AG, Barr additionally violated his personal November 9 Memo asserting that there was a federal investigative function in making certain election integrity as to a nationwide election, like that for the presidency. Worse, McSwain knowledgeable Barr that the Pennsylvania AG had already preannounced that Trump would lose. Thus, Barr will need to have, or not less than ought to have, understood that he was consigning the proof McSwain had already uncovered (or that was introduced to him) to the round file, the place nothing could be performed with it by the biased Democrat, Josh Shapiro.
Barr disputed McSwain’s account, arguing that there was nothing particular he needed to analyze and he was simply making an attempt to get Trump’s endorsement for his run for Pennsylvania Governor. Devlin Barrett, et al., William Barr Clashes with Former Trump Appointee from Pennsylvania Over Handling of Election-Fraud Claims, Washington Post (July 13, 2021); see additionally Chris Brennan, Bill Barr Says Bill McSwain Wanted to Just ‘Flap His Gums,’ Not Investigate 2020 Election Fraud, Phila. Inquirer (July 13, 2021). Even past the truth that this runs solely opposite to McSwain’s confirmed observe file in looking down and efficiently prosecuting election fraud in Philadelphia (one of many historic hotbeds for such criminality within the nation), this ignores that McSwain thought there have been grounds to object to Pennsylvania’s modifications to election guidelines with out legislative approval. And in a later interview, McSwain emphasised that “what I didn’t like was that I wasn’t free to comply with the proof wherever it leads,” a freedom that the November 9 Memo really presupposed to grant (or to go away undisturbed). Chris Brennan, et al., Bill McSwain Tried to Walk a Political Tightrope on Trump’s Election Lies. Bill Barr Cut It, Phila. Inquirer (July 13, 2021) (Brennan Article).
Congress ought to inquire why there seem like so many contradictions between the November 9 Memo and Barr’s directions to McSwain and between Barr and McSwain’s differing accounts of their run-in.
The Second Crack within the Official Story
The second window into how the November 9 Memo was being operationalized took place one 12 months after the McSwain revelations. On March 4, 2022, lawyer Kurt Olsen sued Speaker of the Home Nancy Pelosi, the Home Choose Committee on January 6, and the members of that Choose Committee, for a declaratory judgment that these defendants had been appearing unconstitutionally in demanding his testimony. Most saliently, on July 12, 2022, Olsen filed the declaration of Heidi Stirrup to buttress a reply temporary supporting his name for a preliminary injunction. See typically Olsen v. Pelosi, No. 1:22-cv-00807-CJN (D.D.C.).
Stirrup’s declaration is on the market on Pacer (the federal court docket docketing system). She signifies that in late October 2020, she grew to become the White Home liaison to the Justice Division in preparation for an anticipated second time period for President Trump. See Stirrup Declaration at ¶ 6. In that function, she “felt free to precise to [her] fellow political appointees about [her] concern in regards to the extremely irregular and doubtlessly fraudulent exercise within the 2020 Normal Election.” Id. at ¶ 8. Stirrup then described info communicated to her about how the November 9 Memo got here to be:
- I additionally testified a couple of dialog I had with Mr. Levi [Chief of Staff to AG Barr] on Monday, November 9, 2020, about what he or anybody else on the Division of Justice was doing to analyze the potential election fraud.
- As I defined to Mr. Wooden who was questioning me, Mr. Levi informed me he labored all weekend on a memo, that he was clearly upset and very agitated in regards to the period of time he needed to dedicate over the weekend to questions regarding the election, and he complained that he had missed spending time with household.
- Mr. Levi, informed me that the memo he wrote was meant to supply U.S. Attorneys with the authority and procedures they may depend on to analyze claims of election fraud if such claims had been dropped at them.
12. I requested Mr. Levi what investigative exercise had taken place. He claimed at one level that “they regarded into each allegation that was introduced ahead and located no proof of fraud.” He stored referring me to his weekend memo. Once more, this was simply days after the election when accounts of extremely irregular exercise had been nonetheless popping out.
Id. at ¶¶ 9-12.
There are apparent issues with how Mr. Levi, who was serving as Barr’s Chief of Employees, responded to Ms. Stirrup’s inquiries. The November 9 Memo was clearly not—not less than on its face—the fruits of a means of investigating the 2020 election however as an alternative the initiation of such a course of (or not less than it presupposed to be). This results in the evident query of how Levi may inform Stirrup, on November 9, 2020, that “they regarded into each allegation that was introduced ahead and located no proof of fraud.” That may have been not possible—or required a time machine.
Unsurprisingly then, Stirrup started to ask extra penetrating questions: “Whereas I used to be shocked and relieved to search out out that the Division of Justice was not less than doing one thing, I used to be involved as a result of I had not seen any investigative exercise by the highest legislation enforcement company within the nation. I needed to know particularly what was being performed.” Id. at ¶ 13. In consequence, Levi agreed to let Stirrup have a gathering with Barr. See id. at ¶ 14 (“I needed to listen to from the Lawyer Normal himself.”).
This follow-up assembly was additionally held on November 9, 2022. Stirrup describes what occurred throughout and in relation to the assembly as follows:
- Once more, I testified that I needed to know whether or not there was any exercise aside from the creation of Mr. Levi’s weekend memo. I used to be constantly listening to accounts about all types of regarding issues which had been mentioned to happen within the November 2020 Election and needed to know precisely what the Division was doing to analyze them.
- I testified that I requested Lawyer Normal Barr what was being performed in regards to the extremely irregular election actions. After I particularly requested if the Division had performed something, Mr. Barr informed me “no.” He then informed me, “There is no such thing as a federal function in elections; they’re run by the states. If fraud is dropped at a U.S. Lawyer, they’ve the authority to analyze.” He assured me that regardless of how a lot alleged fraud was introduced ahead, no investigation would take lower than two years and the election wouldn’t be overturned.
- I informed him that I used to be not inquisitive about overturning an election however reasonably was extra involved about what was being performed to analyze the fraud allegations. It was clear to me then, throughout my deposition [before the January 6 Select Committee], and now that nothing was performed.
- The Committee additionally tried to spring on me with none warning, a reporter’s account in a e-book of what occurred on the assembly which was apparently leaked by one in every of Lawyer Normal Barr’s secretaries or workers. This reporter, Jonathan Karl, by no means even spoke to me and the characterizations in his e-book had been merely not true.
Id. at ¶¶ 16-19.
Stirrup’s account incorporates a number of outstanding options:
First, her assertion that the upshot of the assembly concerning 2020 election investigations was “[i]t was clear to me then, throughout my deposition, and now that nothing was performed.” Id. at ¶ 18.
Second, Barr’s reported statements contradict these of his Chief of Employees, Mr. Levi. Mr. Levi indicated to Stirrup that “they regarded into each allegation that was introduced ahead and located no proof of fraud.” Id. at ¶ 12. However Barr informed Stirrup (in Levi’s presence, in accordance with Stirrup) that nothing was being performed in that vein: “After I particularly requested if the Division had performed something, Mr. Barr informed me ‘no.’ He then informed me, ‘There is no such thing as a federal function in elections; they’re run by the states.’” Id. at 17.
Third, Barr did point out to Stirrup that “[i]f fraud is dropped at a U.S. Lawyer, they’ve the authority to analyze.” Id. However we all know from McSwain that McSwain was one such U.S. Lawyer and he was particularly denied the authority to analyze—or as he put it: “I wasn’t free to comply with the proof wherever it leads.” Brennan Article.
Fourth, extra persistently together with her conclusion that no investigation of significance was going down, Barr informed Stirrup that it was futile to interact in investigations as a result of “regardless of how a lot alleged fraud was introduced ahead, no investigation would take lower than two years and the election wouldn’t be overturned.” If this sworn testimony given within the Olsen v. Pelosi litigation is appropriate, assuming Barr had not determined for some unspoken purpose(s) to keep away from performing any investigations, he had not less than determined performing many, if not all investigations was a hopeless enterprise and thus that doing so was not a excessive precedence. That is fairly opposite to Barr’s representations to the press and elsewhere that he oversaw a Division energetically engaged in important 2020 election investigations. See, e.g., Carol Leonnig & Philip Rucker, I Alone Can Repair It: Donald J. Trump’s Catastrophic Remaining 12 months 370 (Barr mentioned “the Justice Division was taking a look at ‘any particular credible allegations that may have a considerable influence’ on the outcomes.”), 371 (“Barr informed Trump he was prepared to have his brokers and attorneys soar on each allegation of great fraud, however up to now he didn’t see any allegations that may transfer the needle on the ultimate name for any state.”) (emphasis added). Stirrup’s testimony is that nothing was being jumped on and McSwain’s testimony is that he was informed to “soar off” investigating and depart it to the Pennsylvania AG Shapiro, who was a Democrat who had already concluded Trump would lose the election making any investigative referral to him pointless.
Fifth, notice that what Stirrup relates really re-creates the established order ante as to DOJ coverage previous to the election, i.e., the pre-11/9/20 terminated coverage of the Prison Division (which is ostensibly what brought on Pilger to resign) that election fraud and irregularities would solely be investigated after the election was lengthy over. But, Barr’s precise actions re-created coverage was the very coverage—on paper—that Barr (or Levi, since he seems to have been the writer based mostly on his admissions to Stirrup) had criticized as “a passive and delayed enforcement strategy [which] can lead to conditions through which election misconduct can not realistically be rectified.” November 9 Memo at 1. That is sturdy proof that the November 9 Memo was performed purely for appearances’ sake, reasonably than to behave as a real spur to legislation enforcement motion.
Sixth, Barr wrongly conflates performing election investigations with performing felony investigations. As soon as once more, this ignores civil investigative instruments and statutes. It’s the type of myopia that makes it straightforward to grasp why the Zuckerbucks Program (see above) was not scrutinized in nice element.
Barr then wound up ejecting Stirrup from the Robert F. Kennedy Constructing (typically known as “Principal Justice”). See Trump Aide Heidi Stirrup Banned from Justice After Trying to Get Case Info, CNBC (Dec. 3, 2020). Jonathan Karl (the CNN reporter and e-book writer) asserted this a lot based mostly on his sources, although with out chatting with Stirrup for her facet of the story (Stirrup Declaration at ¶ 19):
Just a few days after the election, in her first full day within the workplace, she went in to satisfy a senior official on Lawyer Normal Invoice Barr’s staff [likely Levi]. It didn’t go effectively. “It’s good to get up to the actual fact this election is being stolen!” she screamed. “It must be stopped!” (The Atlantic was not in a position to attain Stirrup for remark.)
Barr’s staff noticed Stirrup as extra than simply annoying; they anxious she would snoop into DOJ investigations. This may have been extremely unethical—the White Home will not be presupposed to intrude in felony instances.[]
The subsequent time Stirrup got here round to berate the senior official, he requested her if she want to ship her message on to the legal professional normal, and with that he introduced her in to see Barr. Most individuals discover Barr intimidating, however not Heidi Stirrup. “The election is being stolen,” she lectured him. “You want higher folks doing these investigations.” And he or she informed him she had an inventory of individuals, presumably supplied by [Johnny] McEntee [former Director of the White House Presidential Personnel Office], whom he wanted to rent.
Jonathan D. Karl, The Man Who Made January 6 Attainable, The Atlantic (Nov. 9, 2021) (alleging that McEntee was that enabler).
Once more, taking a step again from the dispute, Congress must name in all of those witnesses and attempt to sq. the varied accounts. Maybe Stirrup did lecture Barr about her views. However the Jonathan Karl account in The Atlantic doesn’t tackle whether or not Barr admitted to Stirrup that he was not investigating as a result of (1) doing so was supposedly a state function and since (2) it could take too lengthy to finish a felony investigation, when solely about 70 days remained at that time earlier than the January 20, 2021 inauguration.
New FOIA Revelations—the Third Crack within the Story
There’s a Twitter consumer (@15poundstogo), calling himself FoiaFan, who ceaselessly recordsdata Freedom of Info Act (FOIA) requests and posts the outcomes to Twitter Funding Watch Weblog was in a position to seize a collection of tweets from FoiaFan starting within the Spring of 2022 and ending in September 2022.
The Twitter thread signifies that FoiaFan despatched a FOIA request (No. EOUSA-2021-002319) to the Justice Division asking for info from 12 DOJ elements throughout seven States, together with United States Lawyer Districts, looking for paperwork regarding what investigations and different actions had been taken in response to the November 9 Memo, as supplemented by an early tweet preserved individually (the primary on this chain). The thread is reproduced on the following web page:
The absence of responsive paperwork to the FoiaFan FOIA request is extraordinary in a number of respects:
First, it’s solely according to Stirrup’s conclusion: “It was clear to me then, throughout my deposition, and now that nothing was performed.” Stirrup Declaration at ¶ 18.
Second, it’s constant as effectively with the McSwain June 9, 2021 Letter, although former U.S. Lawyer McSwain unsurprisingly didn’t point out that he had any visibility into investigations by Principal Justice or by U.S. Lawyer’s Workplaces aside from his personal, the Japanese District of Pennsylvania. Therefore, he was not able to reaching the broader conclusion reached by Stirrup (who was stationed, previous to her ejection by Barr, at Principal Justice) based mostly on her conversations with Barr and Levi.
Third, it’s affordable to deduce that the Japanese District of Pennsylvania got here because the final remaining DOJ part that had not but responded to FoiaFan’s FOIA request regarding the November 9 Memo exactly as a result of DOJ knew that claiming that no responsive paperwork existed as to investigations within the Japanese District of Pennsylvania would come below heavy scrutiny in gentle of McSwain’s allegations. Finally, nonetheless, even that District responded and it additionally didn’t produce by way of FOIA documentation of any investigations that they ran as to the 2020 election utilizing the November 9, 2020 Barr Memo. What occurred to the investigation that McSwain will need to have generated not less than some paper on? Reply: It seems to have been reminiscence holed. They suppose you’re silly.
Former U.S. Lawyer BJay Pak Testimony to the Senate Judiciary Committee
Former U.S. Lawyer BJay Pak was interviewed by the Senate Judiciary Committee on August 11, 2021. See Interview of Byung J. “BJay” Pak (Aug. 11, 2021) (“BJay Pak Interview”). He testified that he had contacted the FBI and the Georgia Secretary of State’s Workplace to look into allegations by President Trump’s personal lawyer Rudy Giuliani. See id. at 12-16. This concerned the query of whether or not there have been exterior “suitcase ballots” being launched into the counting course of on the night of November 3, 2021. Pak testified that “a miscommunication” led to “ballot watchers from every events [sic] had been mistakenly despatched house.” Id. at 16. Pak at no level indicated this was the well-known alleged “watermain break” on the Fulton County, Georgia conference heart, the State Farm Enviornment.This watermain break would transform fictitious—a indisputable fact that Pak at no time known as the trigger for resumed counting to be carried out in violation of the coverage established below state legislation permitting observers from each events to look at the counting course of. See Georgia Code, § 21-2-408 (entitled “ballot watchers,” and so on.). Nor was he cross-examined on this subject.
This raises quite a few questions in regards to the sufficiency of the investigation carried out into Giuliani’s allegations in regards to the fictitious watermain break and its significance. Fulton County is Democrat-dominated. Hours-long durations of counting not noticed by the opposing celebration, the Republican Occasion, is a severe concern and but there is no such thing as a indication from Pak that the difficulty was run to floor by the FBI or because of his personal actions. As a substitute, Pak centered throughout his Senate Judiciary Committee interview on the truth that the “suitcases” that had been pulled out from below tables after ballot watchers left had been “in truth … safe poll field[es].” Pak Interview at 16:15-16. This responds solely to Giuliani allegations or implications that fraudulent ballots had been introduced from the surface of the voting course of through unusual baggage after observers departed. It doesn’t deal with the issues related to ballot watchers now not being current when counting, even of ballots that had been not exterior to the method, resumed late the night of the election.
Pak additionally testified that he and others had been confused about easy methods to interpret Barr’s November 2020 Memo (wrongly referring to it because the November sixth memo). See id. at 19:9-13 (particularly: “there was a disagreement by way of the interpretation of the November sixth [sic] memo issued by AG Barr,” id. at 19:10-11). This led to a delay in when the FBI interviewed these concerned in resuming counting on the State Farm Enviornment on the night of the election. See id. The delayed FBI investigation rejected Giuliani’s allegations in accordance with Pak however he gave no particulars to the Senate Judiciary Committee of why or whether or not the difficulty of the flat absence of ballot watchers for a essential multi-hour interval had been ever put below the microscope. See id. at 20:2-8. (Pak additionally later admitted he by no means reached out to Giuliani or had any FBI investigators attain out to him both. See id. at 38:2-5.)
And remarkably, the 2 related witnesses (that are believed to be January 6 Choose Committee witnesses Ruby Freeman and her daughter, Shaye Moss, had been interviewed collectively by the FBI, which might not have allowed FBI particular brokers to doubtlessly expose the total extent of any inconsistencies of their testimony. See id. at 20:1-2; see additionally id. at 39:3 (“It was the FBI’s choice to do it collectively.”). Pak was effective with this strategy, it could appear, though he admitted that any investigation postponements meant that proof might be spoliated—in different phrases, might be intentionally destroyed. See id. at 51:1-2.).
Pak indicated that he relayed to Barr and to Richard Donoghue, the Principal Affiliate Deputy Lawyer Normal on the time, the outcomes of the FBI investigation. “After which the following factor I came upon is that, you already know, the legal professional normal had issued — that he was going to resign.” Id. at 20:21-23. Barr introduced his resignation (efficient December 23, 2020) on December 14, 2020, indicating that the FBI interviews of related election employees (once more, doubtless Freeman and Moss) occurred weeks after the November 3, 2020 election. The November 9 Memo would appear fairly clear that there was authorization to analyze a matter like this and but confusion about its interpretation, in accordance with Pak, is what led to that delay. Congress ought to aggressively inquire into the delay.
After Pak supplied this testimony about Georgia investigations, Affiliate Deputy Lawyer Normal Bradley Weinsheimer (current on behalf of the Biden DOJ) objected that additional investigations shouldn’t be mentioned: “At this level, I’m involved that Mr. Pak could also be going past the scope. I don’t suppose it’s applicable for him to speak about all the investigations.” Id. at 21:7-10.
Once more, Congress could want to inquire into the total vary of investigations that Pak was concerned in or conscious of, in order that accessible knowledge doesn’t relate to the difficulty of “suitcase ballots” alone, which itself ignores the importance of the pretend watermain break and the departure of Republican ballot watchers. Pak made clear in his testimony that the FBI authorization was solely to take a look at the difficulty of suitcase ballots (narrowly outlined, see beneath): “The authorization I feel the FBI had obtained was just for the people which are depicted within the video who was [sic] on the State Farm location and so I feel that my recollection is that they interviewed 5 to seven folks, which had been — I feel there have been 5 individuals who had been ballot employees, after which there was [sic] two extra.” Id. at 23:19-24. See additionally id. at 24:8-10 (“I appear to recall that was the authorization given by the Election Crimes Department or the Division itself and in order that was slender in scope.”) (emphasis added); id. at 58:21-22 (“Q. And the investigation was accomplished, appropriate? A. The restricted investigation, sure.”) (emphasis added). So the notion that there was a complete investigation in all battleground States by Lawyer Normal Barr in his representations to the press is contradicted by BJay Pak’s testimony. Solely a “restricted investigation” occurred, fastidiously circumscribed in scope and one the place, submit hoc questioning by Senate Republican authorized workers of Pak was lower off by the Biden DOJ’s Weinsheimer.
Pause right here to recall as effectively that Barr informed the only AP reporter he spoke to—on December 1, 2020—that there was no proof of election irregularities adequate to have an effect on the end result of the election. But, it could appear that Pak thought that the 2 witnesses weren’t even interviewed till December 7 or 8, 2020, in gentle of delayed authorization for the FBI to interview the witnesses based mostly on some type of purported confusion in regards to the that means of the November 9 Memo.
Word as effectively that Pak informed the Senate Judiciary Committee he had concluded there was no “widespread fraud or something like that happening in [his] district [which includes Fulton County,] even if he had beforehand admitted that the FBI investigation was “slender in scope” and even if questioning put to him about different investigations was firmly and repeatedly lower off by Weinsheimer. Id. at 25:16-17. Congress must get info on all of the investigations. It shouldn’t permit itself to be stonewalled and given solely a part of the image.
Extra according to Stirrup and McSwain that spirited makes an attempt to probe into 2020 election irregularities had been sorely missing or, worse but, affirmatively blocked, the next change on the Senate Judiciary Committee between Pak and one in every of his interlocutors there’s price finding out:
- Okay. After which may you describe how if in any manner this coverage change manifested in your work as a U.S. Lawyer? Had been you approached by Principal Justice at any level to take a extra forward-leaning strategy to election fraud investigations?
- Other than the [November 9] memo, no, they haven’t. You recognize, we took a — internally on the U.S. Lawyer’s Workplace that I used to be main, I took the strategy of being conservative ….
Id. at 30:8-16. See additionally id. at 31:1-2 (“I didn’t learn the memo as being a directive to be forward-leaning by way of investigations.”) (emphasis added).
At many different junctures, Weinsheimer objected to dam inquiries into whether or not the election investigations had been performed by Pak or different federal law-enforcement officers working with him in Georgia: “Q. Okay. So are you able to say what number of election-related experiences concerning 2020 had been despatched up that reporting chain? Mr. Weinsheimer[:] I might object to that query.” Id. at 41:23-25. See additionally id. at 45:22-25 by way of 46:1-2 (Weinsheimer for DOJ objecting to Pak offering “some description of the examples of the sorts of voter fraud and election crime allegations that you simply obtained referring to the 2020 election.”); id. at 52-53 (objecting to Pak figuring out who the Northern District of Georgia’s felony chief was); id. at 53-54 (objecting to Pak answering what number of allegations of election issues had been elevated to him in 2020); id. at 53:23-24 (“I feel Congress want to know th[at] reply.”); id. at 60 (Weinsheimer refusing to permit Pak to reply questions of whether or not he opened some other investigations of the 2020 election aside from the “restricted” investigation of the “suitcase ballots,” narrowly outlined); id. at 84:2-4 (“You’re stepping into particular investigations that don’t have something to do with particular stress placed on Mr. Pak and so I might object.”).
Pak clearly construed the November 9 Memo as saying basically the identical coverage that had at all times been in place. He didn’t, in different phrases, see it because the type of occasion price resigning over, as Pilger had performed. See id. at 49:14-16 (“This forward-leaning posture, was it completely different earlier than this memo was issued? A. I feel it was fairly comparable.”); id. at 50:9-10, 12-13 (“I considered it because it finely tuned the present coverage …. I didn’t suppose it was an enormous shift within the present coverage.”) (emphasis added).
Mix this with the truth that Pak conceded that the DOJ Prison Division’s Public Integrity Part, previous to November 9, 2020, had adopted “a passive and delayed enforcement strategy.” Id. at 57:11-16. Taken collectively, these concessions level to the truth that the newer November 9 Memo coverage was basically the identical because the previous coverage, besides that it was a barely darker shade of pastel grey. Even so or maybe in gentle of what he thought was the governing coverage (in its pre- and post-November 9 incarnations), Pak admitted that “I don’t suppose it’s unreasonable for [President Trump] to query what we had been doing.”). Id. at 67:15-16 (emphasis added).
Pak relied at occasions on his “District Election Officer,” Brent Grey. Grey has solely ever donated to a Democrat for workplace. See Open Secrets Donor Lookup. Grey can also be a veteran of Principal Justice’s Civil Rights Division, which isn’t recognized to make use of many conservative Republicans. See Pak Transcript at 26:14-17 (“As a matter of truth, the district election officer used to work within the civil rights division of the Division and so he was an ideal match, in my thoughts, and he’s dealt with a number of instances.”); id. at 51:18-24 (Pak agreeing that Grey “was mainly the consumption officer for [election-irregularity] allegations that got here particularly to [Pak’s] workplace”).
Congress ought to inquire additional into investigations by former U.S. Lawyer Bobby Christine, who took over because the Performing U.S. Lawyer for the Northern District of Georgia when Pak departed. Pak demurred that he didn’t know a lot about allegations Christine had investigated regarding whether or not Fulton County ballots had been being transported by truck to be disposed of in Cobb County, Georgia. See id. at 61-64. If such fast poll destruction had occurred, it could be a big election irregularity for federal legislation requires ballots to be retained for 22 months. See 52 U.S.C. § 20701 (provision enforceable by $1,000 effective or imprisonment of as much as one 12 months).
Pak was allowed by Weinsheimer to confess that he didn’t know if there have been any investigation of the allegations in a lawsuit filed by the Trump marketing campaign involving lawyer Cleta Mitchell (and others) circa December 4, 2020. See id. at 65. Pak additionally admitted that regardless of presidential directions to his superior, Donoghue, to take action, he didn’t know if anybody went to Fulton County to analyze the difficulty of signature verification. See id. at 68:9-17. Signature verification was a key concern within the Cleta Mitchell lawsuit, particularly as to mail-in ballots. That is one other scenario the place President Trump orders had been ignored, but Barr or his associates maintained they’d performed a full investigation. It’s clear that they did no such factor. As Pak conceded, the essence of the November 9 Memo was—meet the brand new memo, similar because the previous memo.
All proof factors to the truth that the November 9 Memo was a kabuki dance.
Sadly, former AG Barr’s November 9, 2020 Memo raises extra questions than it solutions. Congress ought to be sure that a number of Home and/or Senate Committees calls within the following people to testify at size about them: (1) William Barr, (2) Jeffrey Rosen (former Deputy Lawyer Normal below Barr), Donoghue’s boss, (3) Richard Donoghue, (4) William McSwain, (5) Heidi Stirrup, (6) Byung Pak, (7) Brent Grey, (8) Bobby Christine, (9) Corey Amundson, and (10) each U.S. Lawyer or Performing U.S. Lawyer (and all of their district election officers) in all the U.S. Lawyer Districts within the States of (a) Arizona, (b) Georgia, (c) Michigan, (d) Nevada, (e) New Hampshire, (f) Pennsylvania, and (g) Wisconsin.
One overarching query looms giant and will function a theme to information congressional oversight:
Was the November 9 Memo largely simply an empty formalism—a kabuki dance—issued to placate President Trump’s election complaints however not really examine essentially the most controversial presidential election in American historical past?
The absence of FOIA responses, plus the opposite proof briefly summarized above regarding former AG Barr’s November 9, 2020 Memo, sadly suggests DOJ investigations of the 2020 presidential election ranged someplace between anemic and nonexistent. And the one investigation that appears to have been performed (regarding Fulton County, Georgia) was very fastidiously circumscribed in order that it was “slender in scope,” with the present DOJ stopping any Senate inquiry so far into whether or not different investigations had been performed.
The stonewalling should finish. The present DOJ, which controls all the related 2020-21 recordsdata, ought to launch the proof detailing all 2020 efforts to analyze the final presidential election. The American folks should know the entire story, not only a fastidiously curated a part of the story seemingly designed to enshrine a type of mythology in regards to the import of the November 9 Barr Memo.