DoJ's rush to report on 'discarded ballots' raises fears of pro-Trump bias

It was a story that seemed tailor-made for Donald Trump: election officials in an important Pennsylvania county were caught discarding nine ballots from military voters that had been cast for the president.

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That’s what federal prosecutors said on Thursday happened in Luzerne county, a key Pennsylvania county in the north-east of the state that Trump flipped in 2016. William Barr, the attorney general, personally briefed Trump on the matter. Trump and the White House hyped the announcement even before the justice department made the announcement. Afterwards, Trump seized on it to support their argument that voting by mail leads to fraud – a lie that several studies have disproved.

But the Pennsylvania story federal prosecutors initially released turned out to be misleading and incomplete. Hours after releasing the statement, the DoJ removed it from its website and issued a revised statement saying that while investigators had recovered nine ballots, they could only determine that seven of them were cast for Trump. Later, the department released a third statement detailing some of the early findings of its investigation. While the letter noted that officials had in fact discovered “discarded” ballots (it did not define the term), it suggested that administrative error may have played a role.

A half-baked public statement from the DoJ is extremely unusual, former department employees said, noting that the department’s own handbook cautions prosecutors to minimize any impact an investigation could have on an election. Even when it does make a public statement in an election fraud investigation, DoJ officials do not typically say who ballots were cast for. The episode further raised alarms that the president could use perhaps the most powerful law enforcement apparatus in the country to support his re-election bid.

“It is a violation of DoJ policy to confirm or deny the existence of an investigation. By making an exception to that rule, the US attorney is creating the appearance that he is using his office to advance the political agenda of President Trump,” said Barbara McQuade, who served as a US attorney in Michigan during the Obama administration.

In Pennsylvania, election officials are prohibited from opening mail-in ballots until election day. But overseas and military voters, who can use a different set of procedures to vote, can return ballot requests and ballots themselves in similar envelopes. Election officials in Luzerne county told investigators it can be difficult to distinguish between an actual ballot and a ballot request, so they opened almost all envelopes that arrived in their office to make sure they didn’t miss any requests.

“Our interviews further revealed that this issue was a problem in the primary election – therefore a known issue – and that the problem has not been corrected,” David Freed, the US attorney for the middle district of Pennsylvania, wrote in his letter.

David Pedri, the county manager, said in a statement Friday that a seasonal contractor, hired on 14 September, was responsible for sorting the mail and had discarded the ballots into the office trash. Shelby Watchilla, the county’s election director, discovered the problem on 16 September and brought it to the attention of county officials, who subsequently contacted law enforcement. Federal agents searched the trash for all three days the contractor was employed and elections officials did not know the for whom the ballots were cast until the DoJ’s Thursday announcement, Pedri said. The county is also offering additional training for employees and has a video camera to monitor activities in the office.

“While the actions of this individual has cast a concern, the above statement shows that the system of checks and balances set forth in Pennsylvania elections works. An error was made, a public servant discovered it and reported it to law enforcement at the local, state and federal level who took over to ensure the integrity of the system in place,” Pedri said in a statement.

“The Luzerne county voters should be assured that the election will move forward with transparency and integrity. Every properly cast vote will be counted.”

Freed publicly announced some of his investigative findings a little over a week after his office took over the probe at the request of the Luzerne county district attorney. Some of the preliminary findings on their face appear alarming – in addition to the nine military ballots in question, Freed also said his office found “four apparently official, bar-coded, absentee ballot envelopes that were empty.” A majority of the materials, he wrote, were found in a dumpster outside the office. Freed said in his Thursday letter he was disclosing the information based on “the vital public importance of these issues.”

While the investigation may be justified, there was no need to release a list of unconfirmed facts, said Justin Levitt, a former top official in the justice department’s civil rights division.

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“Minor mistake, fine for DoJ to follow up. Investigation seems unremarkable,” said Levitt, a professor at Loyola law school in Los Angeles. “Telling the White House is a problem. You don’t tell the White House about a pending investigation because political folks might misuse that info (exactly as they did).”

“You don’t do a press release on starting an investigation, you don’t do a press release with partial (and unconfirmed) facts, and you absolutely 100% no question don’t do a press release mentioning the candidate. There’s zero legit reason for that candidate information,” he added.

Disclosing preliminary findings without a full picture, however, can sow doubt about the integrity of mail-in ballots, said David Iglesias, who served as a US attorney in New Mexico under George W Bush.

He added he couldn’t think of any good law enforcement reason to publicly share the Luzerne finding so early, “just political reasons.”