Former AG Bill Barr personally involved in drafting misleading statement on Pa. mail ballot investigation, DOJ watchdog finds

Former U.S. Attorney General Bill Barr personally urged a top federal prosecutor in Pennsylvania to issue a misleading public statement amid the 2020 presidential election that was later pounced upon by former President Donald Trump to spread false claims of vote-rigging in the state, an investigation by the Justice Department’s watchdog agency concluded Thursday.

The statement — an unusual news release revealing details of an ongoing FBI investigation into several ballots for Trump that had been found discarded in a Luzerne County dumpster — was issued that September by the office of David Freed, then-the U.S. Attorney for the Middle District of Pennsylvania.

But in a 76-page report Thursday, DOJ Inspector General Michael Horowitz concluded Freed’s message left the impression that authorities were reviewing a potential criminal effort to tamper with votes in the county, even though they knew at the time that the ballots had been thrown out by mistake and that it was unlikely any charges would be filed.

Horowitz found both Barr and Freed had broken with long-standing Justice Department policies prohibiting officials from discussing ongoing investigations — especially ones that could influence elections.

But he stopped short of accusing either man of misconduct, citing the broad latitude those policies give the attorney general to act in whatever way he deems appropriate “in the interest of the fair administration of justice.”

Still, Horowitz said: “Nearly every DOJ lawyer we interviewed — both career employees and Trump administration political appointees — emphasized how ‘unusual’ it would be for the department to issue a public statement containing details about an ongoing criminal investigation, particularly before any charges are filed.”

The inspector general’s findings Thursday provided a final postscript to one of the more head-scratching chapters of the 2020 presidential race in Pennsylvania — an election that ultimately became rife with them.

At the time, Trump was publicly disparaging the use of mail ballots — especially in Pennsylvania — and falsely claiming they would be used to rig the outcome of the race against him. Barr, too, had made several baseless statements alleging that mail voting is “very open to fraud and coercion.”

The Justice Department, meanwhile, was under increased scrutiny amid accusations Trump had weaponized the typically apolitical law enforcement agency to advance his own personal and political ends.

And amid that morass, Freed — the top federal prosecutor for Central Pennsylvania — found himself with a potentially explosive case on his hands.

Elections administrators in Luzerne County, in Northeastern Pennsylvania, had found nine filled-out military absentee ballots in a dumpster outside their office that September.

News of the discovery had leaked to the media. Trump referenced it in a radio interview.

And Freed’s office rushed out a statement confirming the FBI was investigating — an unusual step for typically tight-lipped federal authorities, but one that raised even more eyebrows because the U.S. attorney specified all the thrown-out votes had been cast for Trump.

(His office later revised that statement to say only seven of the ballots were Trump votes; the remaining two were still in the sealed envelopes in which they’d been submitted.)

Freed’s news release immediately drew criticism from some who viewed it as the Justice Department attempting to bolster Trump’s false claims about mail voting before investigators were even sure of the facts.

Trump and his surrogates jumped on the news immediately.

Then-White House Press Secretary Kayleigh McEnany mentioned it during a press briefing the day of Freed’s news release. Trump repeatedly cited it during his first debate against Joe Biden the day after. And in a since-deleted tweet, a Trump campaign spokesperson pointed to Freed’s statement, claiming: “Democrats are trying to steal the election.”

But the inspector general’s report Thursday revealed that even before Freed had issued his statement investigators had concluded that the matter in Luzerne County was not part of any systematic or widespread effort to commit voter fraud.

In fact, the report details, authorities had concluded the day the ballots were discovered that they had been accidentally thrown out by a temporary and poorly trained employee hired from a program aimed at providing jobs to people with mental disabilities.

He was subsequently fired, and the discarded ballots were tallied for Trump.

Freed advised Barr of those facts and the unlikelihood that his office would ultimately file charges in the case, the inspector general found. And yet, his report paints both men as giddy over the prospect that the incident could be used to highlight Trump’s suspicions of mail voting and fraud.

Freed advised senior leaders in his office that Justice Department officials had praised them for being “first out of the gate” — a statement he later told inspector general investigators he took to mean that, amid the focus on voter fraud in swing states, they were the first U.S. Attorney’s Office in the country “with some concrete information about the potential.”

Barr, meanwhile, personally briefed Trump as soon as he learned of the investigation — a step Horowitz described as troubling given general Justice Department guidance limiting communications about routine investigations to the White House.

Together, Barr and Freed helped craft the statement on the probe that Freed eventually released. Barr specifically insisted — and Freed agreed — that a line noting the ballots were for Trump should be included in the news release, the inspector general’s report found.

Several Justice Department officials interviewed as part of the inspector general’s investigation expressed dismay over Freed’s decision to say anything at all but especially his statement’s reference to Trump, noting that it put the department in the position of appearing as if it were picking a side.

“I specifically remember telling him,” said one former U.S. attorney who advised Freed during the deliberations over what to say, “this is at the heart of everything we’ve been talking about with respect to election communications, and in any case, if you don’t have a charge, we don’t say anything about an investigation. We just don’t do that.”

Corey Amundson, chief of the department’s Public Integrity Section, which oversees election integrity investigations, noted it was unusual he hadn’t been consulted before any statement was released.

“I found it very odd that all of these people [who] have a lot on their plate and [who] are in senior leadership positions would be involved in the issuance of a news release in the Middle District of Pennsylvania on a matter that is not only not under indictment, but doesn’t involve particularly significant issues,” he told the inspector general’s investigators.

For his part, Barr — in a letter quoted in Thursday’s report — balked at the suggestion he’d done anything improper in urging Freed to release a statement on the case.

“I was concerned that … the department’s silence [on the investigation] was contributing to undue speculation and potentially unsettling the public more than necessary,” he said. Freed’s news release had “its intended effect.”

Freed, meanwhile, said he shared Barr’s concerns given what he described as “the history of corruption and patronage in northeastern Pennsylvania” and the “real uncertainty going on around Pennsylvania’s elections.”

“I know that virtually any decision I [made] is going to be questioned and, especially in this environment, there’s going to be political motives imputed to it,” he said. “I understand that [and] I just try to make the best decision I can based on what’s in front of me.”

Though the Inspector General’s Office did not ultimately accuse Barr or Freed of specific misconduct, it pushed the Justice Department to make several clarifications to policies surrounding what investigative details can be disclosed to the White House and whether protocols about public disclosure apply to the attorney general.

It also urged the Office of the Special Counsel to investigate whether the actions of either man may have violated the Hatch Act, a federal law that prohibits public officials using their office to influence an election, during the Luzerne County investigation.

Ultimately, Freed’s office never filed charges related to the discarded ballots. And despite recommendations from other Justice Department officials, that decision was not publicly announced until after the 2020 election and Freed’s departure from his post.

Despite the controversy the investigation and Freed’s statement had provoked, his successor, Acting U.S. Attorney Bruce D. Brandler, announced the case’s conclusion in January 2021 with a succinct news release of his own.

“The matter is closed,” he wrote.