On November 9, 2020 (six days after the last presidential election), former Attorney General William Barr directed some of his key subordinates to investigate election irregularities, freeing them up to do so by overruling a prior internal Department of Justice (“DOJ”) policy that ordinarily pushed out such investigations until only after the relevant election had ended, been certified, and all election contests in court had finished. 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). Indeed, a senior career manager 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 Department’s election crimes branch Monday night, protesting Attorney General William Barr’s memo authorizing federal prosecutors to pursue allegations of voting irregularities.”). Pilger had edited the 2017 edition of DOJ’s approach to federal election crimes. See Federal Prosecution of Election Offenses (8th ed. Dec. 2017).
Then, on December 1, 2020, news emerged of an exclusive interview AG Barr had given to a single chosen reporter at the Associated Press. “The scoop, which was published on Dec. 1, 2020, quoted Barr as saying that the U.S. Justice Department had uncovered no evidence of widespread voter fraud that could change the outcome 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 are the most senior leaders in the United States Department of Justice and I trust you to exercise great care and judgment in addressing allegations of voting and vote tabulation irregularities.”).
This would cause one to assume that Barr and his relevant subordinates had thoroughly investigated the 2020 election pursuant to the November 9 Memo, found nothing after less than one month had elapsed, and that somehow Barr came to the conclusion it was proper for him to announce the results of his November 9 Memo process on December 1, 2020 not at a general press conference where he would have been subjected to questioning from reporters of all stripes but only via a single mouthpiece-like AP reporter.
Significant new information coming to light beginning in 2021, however, casts serious doubt on any such facile conclusion. In particular, the United States Attorney in Philadelphia (the Eastern District of Pennsylvania), William McSwain, indicates he was told by Barr to proceed in a fashion that contradicts the November 9 Memo. And similarly, the White House liaison to the Justice Department, Heidi Stirrup, has testified that Barr freely told her that he was guiding the Justice Department using a policy very different than the one put on paper in the November 9 Memo.
Finally, former U.S. Attorney Byung Pak of the Northern District of Georgia has a more complicated story to tell but it boils down to the fact that he conducted a single, very narrow investigation into part of one election irregularity at the State Farm Arena in Fulton County, Georgia but otherwise did not bestir himself (nor was he ordered) to look at other irregularities such as problems with signature matching on mail-in ballots or the false basis propagated to poll watchers at the State Farm Arena allowing a Democrat Party-dominated Fulton County set of election workers to count ballots on November 3-4, 2020 without observation by the opposing political party.
The divergence between the November 9 Memo’s printed words and what was actually going on behind the scenes at the Justice Department in 2020 into early 2021 raises serious questions that Barr and his relevant subordinates must be called to answer by Congress. In sum, why did the formal November 9 directive tell DOJ officials to do something different than Barr actually allowed them to do in practice? Shouldn’t Barr and his relevant underlings come clean on that and shouldn’t the current DOJ, which controls the files, release the evidence detailing all 2020 efforts to investigate the last presidential election? The American people deserve to know what was actually investigated, more importantly what was not investigated, and what the results were.
As noted, former AG Barr issued an election investigation memorandum on November 9, 2020. The November 9 Memo began by stressing that “it is imperative that the American people can trust that our elections were conducted in such a way that the outcomes accurately reflect the will of the voters.” November 9 Memo at 1. The Memo then addressed how the Justice Department’s role and election federalism interface: “Although the States have the primary responsibility to conduct and supervise elections under our Constitution and the laws enacted by Congress, the United States Department of Justice has an obligation to ensure that federal elections are conducted in such a way that the American people can have full confidence in their electoral process and their government.” Id. It is difficult to disagree with either of these platitude-like statements.
From that premise, the November 9 Memo stated that the Justice Manual (a guidance document up on the web here) and policies of the Criminal Division’s Public Integrity Section’s Election Crimes Branch (ECB) had established a policy such that “overt investigative steps ordinarily should not be taken until the election in question has been concluded, its results certified, and all recounts and election contests concluded.” Id. On paper, the former Attorney General rejected that approach stating:
Such a passive and delayed enforcement approach can result in situations in which election misconduct cannot realistically be rectified. Moreover, this ECB practice has never been a hard and fast rule, and case-specific determinations and judgments must be made. While most allegations of purported election misconduct are of such a scale that they would not impact the outcome of an election and, thus, investigation can appropriately be deferred, that is not always the case. Furthermore, any concerns that overt actions taken by the Department could inadvertently impact an election are greatly minimized, if they exist at all, once voting has concluded, even if election certification has not yet been completed.
This all sounds good and it was obviously an important step (even if it was done purely on a parchment basis) to reverse a wrongheaded DOJ Criminal Division policy designed to affirmatively foster impotence in the face of election fraud.
The November 9 Memo then authorized action: “I authorize you to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions in certain cases, as I have already done in specific instances. Such inquiries and reviews may be conducted if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.” Id. at 1-2. So far, so good.
Note as well that the November 9 Memo indicates that it does not want to interfere with investigations U.S. Attorneys in their respective districts think appropriate: “While U.S. Attorneys maintain their inherent authority to conduct inquiries and investigations as they deem appropriate, it will likely be prudent to commence any election-related matters as a preliminary inquiry, so as to assess whether available evidence warrants further investigative steps.” Id. at 2.
The First Crack in the Official Story
The Memo concluded with the common-sense admonition: “[S]pecious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries.” Id.
On June 9, 2021, the former U.S. Attorney in Philadelphia (the Eastern District of Pennsylvania), William M. McSwain, wrote to former President Trump to poke holes in Barr’s official story that he had done his best and rode herd on other DOJ officials to do the same to investigate the 2020 presidential election irregularities. See Letter from William M. McSwain to President Trump (June 9, 2020) (McSwain June 9, 2021 Letter).
McSwain began the June 9 Letter by reminding President Trump of his accomplishments in the election fraud area: “In the spring of 2020, I prosecuted and won an election fraud case against a Judge of Elections in South Philadelphia who was stuffing the ballot box. I also charged the political consultant (a former Democratic Congressman) who was paying bribes to the Judge to stuff the ballot box.” Id. at 1. A Justice Department press release 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 Release).
McSwain then turned to the subject of the 2020 election:
President Trump, you were right to be upset about the way the Democrats ran the 2020 election in Pennsylvania – it was a partisan disgrace. The Governor, the Secretary of the Commonwealth, and the partisan State Supreme Court made up their own rules and did not follow the law. Even worse, the State Attorney General, Josh Shapiro – the very person responsible for the enforcement of state election law – declared days before Election Day that you could not win the election. It would be hard to imagine a more irresponsible statement by a law enforcement officer, especially during a hotly contested election. In light of such statements, it is hardly surprising that many Pennsylvanians lack faith in our state’s election results.
McSwain June 9, 2021 Letter at 1.
The problem of the Commonwealth of Pennsylvania “making up its own rules,” contrary to those established prior to and for the election by the Pennsylvania Legislature was a veritable nest of irregularity. The Justice Department clearly could have investigated those rule changes, civilly or criminally, and at the very least filed amicus briefs or statements of interest in election contests in federal and/or state courts in Pennsylvania indicating that such rule changes were unconstitutional, suspicious, and one-sided in their impact. Yet the Justice Department never did so. Nor did the Justice Department, it would seem, ever deign to investigate the substantial election-rigging effects of the Zuckerbucks Program, which was assailed in several complaints coming out of think-tank world (filed on September 22, 2022) to the IRS. See Individual Complaint & Entities Complaint. See generally Mollie Hemingway, Rigged: How the Media, Big Tech, and the Democrats Seized Our Elections (2021).
Former U.S. Attorney McSwain then got more granular in documenting his complaints about Barr to former President Trump:
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 [and current Democrat Governor of Pennsylvania] who had already declared that you could not win.
Id. (emphasis added).
In other words, McSwain wanted to investigate numerous allegations of fraud and other irregularities. Yet Barr denied him the ability to do so. This violates the November 9 Memo itself, where Barr said that “U.S. Attorneys maintain their inherent authority to conduct inquiries and investigations as they deem appropriate ….” November 9 Memo at 2 (emphasis added). McSwain was not permitted to proceed as he deemed appropriate, but only as Barr deemed appropriate.
Additionally, by instructing McSwain to turn over evidence of “vote fraud and election irregularities” to the Democrat Pennsylvania AG, Barr also violated his own November 9 Memo asserting that there was a federal investigative role in ensuring election integrity as to a national election, like that for the presidency. Worse, McSwain informed Barr that the Pennsylvania AG had already preannounced that Trump would lose. Thus, Barr must have, or at least should have, understood that he was consigning the evidence McSwain had already uncovered (or that was presented to him) to the circular file, where nothing would be done with it by the biased Democrat, Josh Shapiro.
Barr disputed McSwain’s account, arguing that there was nothing specific he wanted to investigate and he was just trying 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 also Chris Brennan, Bill Barr Says Bill McSwain Wanted to Just ‘Flap His Gums,’ Not Investigate 2020 Election Fraud, Phila. Inquirer (July 13, 2021). Even beyond the fact that this runs entirely contrary to McSwain’s proven track record in hunting down and successfully prosecuting election fraud in Philadelphia (one of the historical hotbeds for such illegal activity in the country), this ignores that McSwain thought there were grounds to object to Pennsylvania’s changes to election rules without legislative approval. And in a later interview, McSwain emphasized that “what I didn’t like was that I wasn’t free to follow the evidence wherever it leads,” a freedom that the November 9 Memo actually purported to grant (or to leave 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 should inquire why there appear to be so many contradictions between the November 9 Memo and Barr’s instructions to McSwain and between Barr and McSwain’s differing accounts of their run-in.
The Second Crack in the Official Story
The second window into how the November 9 Memo was being operationalized came about one year after the McSwain revelations. On March 4, 2022, lawyer Kurt Olsen sued Speaker of the House Nancy Pelosi, the House Select Committee on January 6, and the members of that Select Committee, for a declaratory judgment that those defendants were acting unconstitutionally in demanding his testimony. Most saliently, on July 12, 2022, Olsen filed the declaration of Heidi Stirrup to buttress a reply brief supporting his call for a preliminary injunction. See generally Olsen v. Pelosi, No. 1:22-cv-00807-CJN (D.D.C.).
Stirrup’s declaration is available on Pacer (the federal court docketing system). She indicates that in late October 2020, she became the White House liaison to the Justice Department in preparation for an anticipated second term for President Trump. See Stirrup Declaration at ¶ 6. In that role, she “felt free to express to [her] fellow political appointees about [her] concern about the highly irregular and potentially fraudulent activity in the 2020 General Election.” Id. at ¶ 8. Stirrup then described facts communicated to her about how the November 9 Memo came to be:
- I also testified about a conversation I had with Mr. Levi [Chief of Staff to AG Barr] on Monday, November 9, 2020, about what he or anyone else at the Department of Justice was doing to investigate the potential election fraud.
- As I explained to Mr. Wood who was questioning me, Mr. Levi told me he worked all weekend on a memo, that he was clearly upset and extremely agitated about the amount of time he had to devote over the weekend to questions concerning the election, and he complained that he had missed spending time with family.
- Mr. Levi, told me that the memo he wrote was intended to provide U.S. Attorneys with the authority and procedures they could rely on to investigate claims of election fraud if such claims were brought to them.
12. I asked Mr. Levi what investigative activity had taken place. He claimed at one point that “they looked into every allegation that was brought forward and found no evidence of fraud.” He kept referring me to his weekend memo. Again, this was just days after the election when accounts of highly irregular activity were still coming out.
Id. at ¶¶ 9-12.
There are obvious problems with how Mr. Levi, who was serving as Barr’s Chief of Staff, responded to Ms. Stirrup’s inquiries. The November 9 Memo was clearly not—at least on its face—the culmination of a process of investigating the 2020 election but instead the initiation of such a process (or at least it purported to be). This leads to the evident question of how Levi could tell Stirrup, on November 9, 2020, that “they looked into every allegation that was brought forward and found no evidence of fraud.” That would have been impossible—or required a time machine.
Unsurprisingly then, Stirrup began to ask more penetrating questions: “While I was surprised and relieved to find out that the Department of Justice was at least doing something, I was concerned because I had not seen any investigative activity by the top law enforcement agency in the nation. I wanted to know specifically what was being done.” Id. at ¶ 13. As a result, Levi agreed to let Stirrup have a meeting with Barr. See id. at ¶ 14 (“I wanted to hear from the Attorney General himself.”).
This follow-up meeting was also held on November 9, 2022. Stirrup describes what happened during and in relation to the meeting as follows:
- Again, I testified that I wanted to know whether there was any activity other than the creation of Mr. Levi’s weekend memo. I was continuously hearing accounts about all kinds of concerning things which were said to occur in the November 2020 Election and wanted to know exactly what the Department was doing to investigate them.
- I testified that I asked Attorney General Barr what was being done about the highly irregular election activities. When I specifically asked if the Department had done anything, Mr. Barr told me “no.” He then told me, “There is no federal role in elections; they are run by the states. If fraud is brought to a U.S. Attorney, they have the authority to investigate.” He assured me that no matter how much alleged fraud was brought forward, no investigation would take less than two years and the election would not be overturned.
- I told him that I was not interested in overturning an election but rather was more concerned about what was being done to investigate the fraud allegations. It was clear to me then, during my deposition [before the January 6 Select Committee], and now that nothing was done.
- The Committee also attempted to spring on me without any warning, a reporter’s account in a book of what happened at the meeting which was apparently leaked by one of Attorney General Barr’s secretaries or staff. This reporter, Jonathan Karl, never even spoke to me and the characterizations in his book were simply not true.
Id. at ¶¶ 16-19.
Stirrup’s account contains several remarkable features:
First, her statement that the upshot of the meeting regarding 2020 election investigations was “[i]t was clear to me then, during my deposition, and now that nothing was done.” Id. at ¶ 18.
Second, Barr’s reported statements contradict those of his Chief of Staff, Mr. Levi. Mr. Levi indicated to Stirrup that “they looked into every allegation that was brought forward and found no evidence of fraud.” Id. at ¶ 12. But Barr told Stirrup (in Levi’s presence, according to Stirrup) that nothing was being done in that vein: “When I specifically asked if the Department had done anything, Mr. Barr told me ‘no.’ He then told me, ‘There is no federal role in elections; they are run by the states.’” Id. at 17.
Third, Barr did indicate to Stirrup that “[i]f fraud is brought to a U.S. Attorney, they have the authority to investigate.” Id. But we know from McSwain that McSwain was one such U.S. Attorney and he was specifically denied the authority to investigate—or as he put it: “I wasn’t free to follow the evidence wherever it leads.” Brennan Article.
Fourth, more consistently with her conclusion that no investigation of significance was taking place, Barr told Stirrup that it was futile to engage in investigations because “no matter how much alleged fraud was brought forward, no investigation would take less than two years and the election would not be overturned.” If this sworn testimony given in the Olsen v. Pelosi litigation is correct, assuming Barr had not decided for some unstated reason(s) to avoid performing any investigations, he had at least decided performing many, if not all investigations was a hopeless enterprise and thus that doing so was not a high priority. This is quite contrary to Barr’s representations to the press and elsewhere that he oversaw a Department energetically engaged in significant 2020 election investigations. See, e.g., Carol Leonnig & Philip Rucker, I Alone Can Fix It: Donald J. Trump’s Catastrophic Final Year 370 (Barr said “the Justice Department was looking at ‘any specific credible allegations that would have a substantial impact’ on the results.”), 371 (“Barr told Trump he was willing to have his agents and lawyers jump on every allegation of serious fraud, but so far he didn’t see any allegations that would move the needle on the final call for any state.”) (emphasis added). Stirrup’s testimony is that nothing was being jumped on and McSwain’s testimony is that he was told to “jump off” investigating and leave 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, note that what Stirrup relates actually re-creates the status quo ante as to DOJ policy prior to the election, i.e., the pre-11/9/20 terminated policy of the Criminal Division (which is ostensibly what caused Pilger to resign) that election fraud and irregularities would only be investigated after the election was long over. Yet, Barr’s actual actions re-created policy was the very policy—on paper—that Barr (or Levi, since he appears to have been the author based on his admissions to Stirrup) had criticized as “a passive and delayed enforcement approach [which] can result in situations in which election misconduct cannot realistically be rectified.” November 9 Memo at 1. This is strong evidence that the November 9 Memo was done purely for appearances’ sake, rather than to act as a true spur to law enforcement action.
Sixth, Barr wrongly conflates performing election investigations with performing criminal investigations. Once again, this ignores civil investigative tools and statutes. It is the kind of myopia that makes it easy to understand why the Zuckerbucks Program (see above) was not scrutinized in great detail.
Barr then wound up ejecting Stirrup from the Robert F. Kennedy Building (often called “Main 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 book author) asserted this much based on his sources, though without speaking to Stirrup for her side of the story (Stirrup Declaration at ¶ 19):
A few days after the election, in her first full day in the office, she went in to meet a senior official on Attorney General Bill Barr’s team [likely Levi]. It didn’t go well. “You need to wake up to the fact this election is being stolen!” she screamed. “It needs to be stopped!” (The Atlantic was not able to reach Stirrup for comment.)
Barr’s team saw Stirrup as more than just annoying; they worried she would snoop into DOJ investigations. This would have been highly unethical—the White House is not supposed to interfere in criminal cases.[]
The next time Stirrup came around to berate the senior official, he asked her if she would like to deliver her message directly to the attorney general, and with that he brought her in to see Barr. Most people find Barr intimidating, but not Heidi Stirrup. “The election is being stolen,” she lectured him. “You need better people doing these investigations.” And she told him she had a list of people, presumably provided by [Johnny] McEntee [former Director of the White House Presidential Personnel Office], whom he needed to hire.
Jonathan D. Karl, The Man Who Made January 6 Possible, The Atlantic (Nov. 9, 2021) (alleging that McEntee was that enabler).
Again, taking a step back from the dispute, Congress needs to call in all of these witnesses and try to square the various accounts. Perhaps Stirrup did lecture Barr about her views. But the Jonathan Karl account in The Atlantic does not take on whether Barr admitted to Stirrup that he was not investigating because (1) doing so was supposedly a state role and because (2) it would take too long to complete a criminal investigation, when only about 70 days remained at that point before the January 20, 2021 inauguration.
New FOIA Revelations—the Third Crack in the Story
There is a Twitter user (@15poundstogo), calling himself FoiaFan, who frequently files Freedom of Information Act (FOIA) requests and posts the results to Twitter Investment Watch Blog was able to capture a series of tweets from FoiaFan beginning in the Spring of 2022 and ending in September 2022.
The Twitter thread indicates that FoiaFan sent a FOIA request (No. EOUSA-2021-002319) to the Justice Department asking for information from 12 DOJ components across seven States, including United States Attorney Districts, seeking documents concerning what investigations and other actions were taken in response to the November 9 Memo, as supplemented by an early tweet preserved separately (the first in this chain). The thread is reproduced on the next page:
The absence of responsive documents to the FoiaFan FOIA request is extraordinary in several respects:
First, it is entirely consistent with Stirrup’s conclusion: “It was clear to me then, during my deposition, and now that nothing was done.” Stirrup Declaration at ¶ 18.
Second, it is consistent as well with the McSwain June 9, 2021 Letter, though former U.S. Attorney McSwain unsurprisingly did not indicate that he had any visibility into investigations by Main Justice or by U.S. Attorney’s Offices other than his own, the Eastern District of Pennsylvania. Hence, he was not capable of reaching the broader conclusion reached by Stirrup (who was stationed, prior to her ejection by Barr, at Main Justice) based on her conversations with Barr and Levi.
Third, it is reasonable to infer that the Eastern District of Pennsylvania came as the last remaining DOJ component that had not yet responded to FoiaFan’s FOIA request concerning the November 9 Memo precisely because DOJ knew that claiming that no responsive documents existed as to investigations in the Eastern District of Pennsylvania would come under heavy scrutiny in light of McSwain’s allegations. Eventually, however, even that District responded and it also did not produce through FOIA documentation of any investigations that they ran as to the 2020 election using the November 9, 2020 Barr Memo. What happened to the investigation that McSwain must have generated at least some paper on? Answer: It appears to have been memory holed. They think you’re stupid.
Former U.S. Attorney BJay Pak Testimony to the Senate Judiciary Committee
Former U.S. Attorney 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 Office to look into allegations by President Trump’s private lawyer Rudy Giuliani. See id. at 12-16. This involved the question of whether there were external “suitcase ballots” being introduced into the counting process on the evening of November 3, 2021. Pak testified that “a miscommunication” led to “poll watchers from each parties [sic] were mistakenly sent home.” Id. at 16. Pak at no point indicated this was the famous alleged “watermain break” at the Fulton County, Georgia convention center, the State Farm Arena.This watermain break would turn out to be fictitious—a fact that Pak at no time referred to as the cause for resumed counting to be conducted in violation of the policy established under state law allowing observers from both parties to watch the counting process. See Georgia Code, § 21-2-408 (entitled “poll watchers,” etc.). Nor was he cross-examined on this topic.
This raises numerous questions about the sufficiency of the investigation conducted into Giuliani’s allegations about the fictitious watermain break and its significance. Fulton County is Democrat-dominated. Hours-long periods of counting not observed by the opposing party, the Republican Party, is a serious issue and yet there is no indication from Pak that the issue was run to ground by the FBI or as a result of his own actions. Instead, Pak focused during his Senate Judiciary Committee interview on the fact that the “suitcases” that were pulled out from under tables after poll watchers left were “in fact … secure ballot box[es].” Pak Interview at 16:15-16. This responds only to Giuliani allegations or implications that fraudulent ballots were brought from the outside of the voting process via ordinary luggage after observers departed. It does not address the problems associated with poll watchers no longer being present when counting, even of ballots that were not external to the process, resumed late the evening of the election.
Pak also testified that he and others were confused about how to interpret Barr’s November 2020 Memo (wrongly referring to it as the November 6th memo). See id. at 19:9-13 (especially: “there was a disagreement in terms of the interpretation of the November 6th [sic] memo issued by AG Barr,” id. at 19:10-11). This led to a delay in when the FBI interviewed those involved in resuming counting at the State Farm Arena on the evening of the election. See id. The delayed FBI investigation rejected Giuliani’s allegations according to Pak but he gave no details to the Senate Judiciary Committee of why or whether the issue of the flat absence of poll watchers for a critical multi-hour period were ever put under the microscope. See id. at 20:2-8. (Pak also later admitted he never reached out to Giuliani or had any FBI investigators reach out to him either. See id. at 38:2-5.)
And remarkably, the two relevant witnesses (which are believed to be January 6 Select Committee witnesses Ruby Freeman and her daughter, Shaye Moss, were interviewed together by the FBI, which would not have allowed FBI special agents to potentially expose the full extent of any inconsistencies in their testimony. See id. at 20:1-2; see also id. at 39:3 (“It was the FBI’s decision to do it together.”). Pak was fine with this approach, it would seem, even though he admitted that any investigation postponements meant that evidence could be spoliated—in other words, could be deliberately destroyed. See id. at 51:1-2.).
Pak indicated that he relayed to Barr and to Richard Donoghue, the Principal Associate Deputy Attorney General at the time, the results of the FBI investigation. “And then the next thing I found out is that, you know, the attorney general had issued — that he was going to resign.” Id. at 20:21-23. Barr announced his resignation (effective December 23, 2020) on December 14, 2020, indicating that the FBI interviews of relevant election workers (again, likely Freeman and Moss) occurred weeks after the November 3, 2020 election. The November 9 Memo would seem quite clear that there was authorization to investigate a matter like this and yet confusion about its interpretation, according to Pak, is what led to that delay. Congress should aggressively inquire into the delay.
After Pak provided this testimony about Georgia investigations, Associate Deputy Attorney General Bradley Weinsheimer (present on behalf of the Biden DOJ) objected that further investigations should not be discussed: “At this point, I’m concerned that Mr. Pak may be going beyond the scope. I don’t think it’s appropriate for him to talk about all of the investigations.” Id. at 21:7-10.
Again, Congress may wish to inquire into the full range of investigations that Pak was involved in or aware of, so that available data does not relate to the issue of “suitcase ballots” alone, which itself ignores the significance of the fake watermain break and the departure of Republican poll watchers. Pak made clear in his testimony that the FBI authorization was only to look at the issue of suitcase ballots (narrowly defined, see below): “The authorization I think the FBI had received was only for the individuals that are depicted in the video who was [sic] at the State Farm location and so I think that my recollection is they interviewed five to seven people, which were — I think there were five people who were poll workers, and then there was [sic] two additional.” Id. at 23:19-24. See also id. at 24:8-10 (“I seem to recall that was the authorization given by the Election Crimes Branch or the Department itself and so that was narrow in scope.”) (emphasis added); id. at 58:21-22 (“Q. And the investigation was completed, correct? A. The limited investigation, yes.”) (emphasis added). So the notion that there was a comprehensive investigation in all battleground States by Attorney General Barr in his representations to the press is contradicted by BJay Pak’s testimony. Only a “limited investigation” occurred, carefully circumscribed in scope and one where, post hoc questioning by Senate Republican legal staff of Pak was cut off by the Biden DOJ’s Weinsheimer.
Pause here to recall as well that Barr told the single AP reporter he spoke to—on December 1, 2020—that there was no evidence of election irregularities sufficient to affect the outcome of the election. Yet, it would seem that Pak thought that the two witnesses were not even interviewed until December 7 or 8, 2020, in light of delayed authorization for the FBI to interview the witnesses based on some kind of purported confusion about the meaning of the November 9 Memo.
Note as well that Pak told the Senate Judiciary Committee he had concluded there was no “widespread fraud or anything like that going on in [his] district [which includes Fulton County,] despite the fact that he had previously admitted that the FBI investigation was “narrow in scope” and despite the fact that questioning put to him about other investigations was firmly and repeatedly cut off by Weinsheimer. Id. at 25:16-17. Congress needs to get information on all of the investigations. It shouldn’t allow itself to be stonewalled and given only part of the picture.
More consistent with Stirrup and McSwain that spirited attempts to probe into 2020 election irregularities were sorely lacking or, worse yet, affirmatively blocked, the following exchange at the Senate Judiciary Committee between Pak and one of his interlocutors there is worth studying:
- Okay. And then could you describe how if in any way this policy change manifested in your work as a U.S. Attorney? Were you approached by Main Justice at any point to take a more forward-leaning approach to election fraud investigations?
- Apart from the [November 9] memo, no, they have not. You know, we took a — internally at the U.S. Attorney’s Office that I was leading, I took the approach of being conservative ….
Id. at 30:8-16. See also id. at 31:1-2 (“I didn’t read the memo as being a directive to be forward-leaning in terms of investigations.”) (emphasis added).
At many other junctures, Weinsheimer objected to block inquiries into whether the election investigations were done by Pak or other federal law-enforcement officials working with him in Georgia: “Q. Okay. So can you say how many election-related reports regarding 2020 were sent up that reporting chain? Mr. Weinsheimer[:] I would object to that question.” Id. at 41:23-25. See also id. at 45:22-25 through 46:1-2 (Weinsheimer for DOJ objecting to Pak providing “some description of the examples of the types of voter fraud and election crime allegations that you received relating to the 2020 election.”); id. at 52-53 (objecting to Pak identifying who the Northern District of Georgia’s criminal chief was); id. at 53-54 (objecting to Pak answering how many allegations of election problems were elevated to him in 2020); id. at 53:23-24 (“I think Congress would like to know th[at] answer.”); id. at 60 (Weinsheimer refusing to allow Pak to answer questions of whether he opened any other investigations of the 2020 election other than the “limited” investigation of the “suitcase ballots,” narrowly defined); id. at 84:2-4 (“You’re getting into specific investigations that don’t have anything to do with specific pressure put on Mr. Pak and so I would object.”).
Pak clearly construed the November 9 Memo as announcing essentially the same policy that had always been in place. He did not, in other words, see it as the kind of event worth resigning over, as Pilger had done. See id. at 49:14-16 (“This forward-leaning posture, was it different before this memo was issued? A. I think it was pretty similar.”); id. at 50:9-10, 12-13 (“I viewed it as it finely tuned the existing policy …. I didn’t think it was a huge shift in the current policy.”) (emphasis added).
Combine this with the fact that Pak conceded that the DOJ Criminal Division’s Public Integrity Section, prior to November 9, 2020, had followed “a passive and delayed enforcement approach.” Id. at 57:11-16. Taken together, these concessions point to the fact that the newer November 9 Memo policy was essentially the same as the old policy, except that it was a slightly darker shade of pastel gray. Even so or perhaps in light of what he thought was the governing policy (in its pre- and post-November 9 incarnations), Pak admitted that “I don’t think it’s unreasonable for [President Trump] to question what we were doing.”). Id. at 67:15-16 (emphasis added).
Pak relied at times on his “District Election Officer,” Brent Gray. Gray has only ever donated to a Democrat for office. See Open Secrets Donor Lookup. Gray is also a veteran of Main Justice’s Civil Rights Division, which is not known to employ many conservative Republicans. See Pak Transcript at 26:14-17 (“As a matter of fact, the district election officer used to work in the civil rights division of the Department and so he was a perfect fit, in my mind, and he’s handled several cases.”); id. at 51:18-24 (Pak agreeing that Gray “was basically the intake officer for [election-irregularity] allegations that came specifically to [Pak’s] office”).
Congress should inquire further into investigations by former U.S. Attorney Bobby Christine, who took over as the Acting U.S. Attorney for the Northern District of Georgia when Pak departed. Pak demurred that he did not know much about allegations Christine had investigated concerning whether Fulton County ballots were being transported by truck to be disposed of in Cobb County, Georgia. See id. at 61-64. If such rapid ballot destruction had occurred, it would be a significant election irregularity for federal law requires ballots to be retained for 22 months. See 52 U.S.C. § 20701 (provision enforceable by $1,000 fine or imprisonment of up to one year).
Pak was allowed by Weinsheimer to admit that he did not know if there were any investigation of the allegations in a lawsuit filed by the Trump campaign involving lawyer Cleta Mitchell (and others) circa December 4, 2020. See id. at 65. Pak also admitted that despite presidential instructions to his superior, Donoghue, to do so, he did not know if anyone went to Fulton County to investigate the issue of signature verification. See id. at 68:9-17. Signature verification was a key issue in the Cleta Mitchell lawsuit, especially as to mail-in ballots. This is another situation where President Trump orders were ignored, yet Barr or his associates maintained they had done a full investigation. It is clear that they did no such thing. As Pak conceded, the essence of the November 9 Memo was—meet the new memo, same as the old memo.
All evidence points to the fact that the November 9 Memo was a kabuki dance.
Unfortunately, former AG Barr’s November 9, 2020 Memo raises more questions than it answers. Congress should ensure that one or more House and/or Senate Committees calls in the following individuals to testify at length about them: (1) William Barr, (2) Jeffrey Rosen (former Deputy Attorney General under Barr), Donoghue’s boss, (3) Richard Donoghue, (4) William McSwain, (5) Heidi Stirrup, (6) Byung Pak, (7) Brent Gray, (8) Bobby Christine, (9) Corey Amundson, and (10) every U.S. Attorney or Acting U.S. Attorney (and all of their district election officers) in all of the U.S. Attorney Districts in the States of (a) Arizona, (b) Georgia, (c) Michigan, (d) Nevada, (e) New Hampshire, (f) Pennsylvania, and (g) Wisconsin.
One overarching question looms large and could serve as a theme to guide congressional oversight:
Was the November 9 Memo largely just an empty formalism—a kabuki dance—issued to placate President Trump’s election complaints but not actually investigate the most controversial presidential election in American history?
The absence of FOIA responses, plus the other evidence briefly summarized above concerning former AG Barr’s November 9, 2020 Memo, sadly suggests DOJ investigations of the 2020 presidential election ranged somewhere between anemic and nonexistent. And the one investigation that seems to have been done (concerning Fulton County, Georgia) was very carefully circumscribed so that it was “narrow in scope,” with the current DOJ preventing any Senate inquiry to date into whether other investigations were done.
The stonewalling must end. The current DOJ, which controls all of the relevant 2020-21 files, should release the evidence detailing all 2020 efforts to investigate the last presidential election. The American people deserve to know the whole story, not just a carefully curated part of the story seemingly designed to enshrine a kind of mythology about the import of the November 9 Barr Memo.