Former U.S. Attorney General Bill Barr personally encouraged Pennsylvania’s top federal prosecutor to issue a misleading public statement about the 2020 presidential election, which former President Donald Trump later used to spread false claims of election fraud in the state, according to an investigation released Thursday by a Justice Department watchdog agency.
The statement — an extraordinary press release revealing details of the ongoing FBI investigation into several Trump ballots found in a dumpster in Luzerne County — was issued in September of that year by the office of David Freed, then the U.S. attorney for the Middle District of Pennsylvania.
But in 76-page report On Thursday, Justice Department Inspector General Michael Horowitz said Freed’s message suggested authorities were investigating a potential criminal attempt to tamper with votes in the county, even though they already knew at the time that the votes had been thrown out in error and that it was unlikely any charges would be filed.
Horowitz said both Barr and Freed had broken with long-standing Department of Justice policy prohibiting officials from discussing ongoing investigations — especially those that could affect the election.
But he stopped brief of accusing any of them of misconduct, citing the broad discretion these rules give the attorney general to act as he deems appropriate “in the interests of the fair administration of justice.”
Still, Horowitz said, “Nearly every Justice Department lawyer we interviewed — both career staffers and Trump administration appointees — emphasized how ‘extraordinary’ it would be for the department to issue a public statement detailing an ongoing criminal investigation, especially before any charges have been filed.”
A potentially explosive case
The inspector general’s findings on Thursday were the latest afterword to one of the most surprising chapters in Pennsylvania’s 2020 presidential race — an election that ultimately featured a ton of them.
At the time, Trump had publicly condemned the utilize of mail-in voting — particularly in Pennsylvania — and falsely claimed it would be used to rig the race against him. Barr had also made several baseless claims that mail-in voting was “highly susceptible to fraud and coercion.”
Meanwhile, the Justice Department has come under increased scrutiny over accusations that Trump has weaponized the normally apolitical law enforcement agency to advance his own personal and political agenda.
And in the midst of this quagmire, Freed — the top federal prosecutor in central Pennsylvania — found himself taking on a potentially explosive case.
In September, election administrators in Luzerne County, in northeastern Pennsylvania, found nine completed military absentee ballots in a dumpster outside their office.
News of the discovery was leaked to the media. Trump mentioned it in a radio interview.
Freed’s office quickly issued a statement confirming that the FBI was investigating, an unusual step for normally reticent federal authorities but one that drew even more surprises because the U.S. attorney determined that all of the rejected votes were cast for Trump.
(His office later corrected that statement to say that only seven of the ballots were Trump votes; the other two were still in the sealed envelopes in which they were deposited.)
Freed’s press release was immediately met with criticism from some who saw the Justice Department as trying to bolster Trump’s false claims about mail-in voting before investigators were certain of the facts.
Trump and his surrogates responded immediately to the news.
Then-White House press secretary Kayleigh McEnany mentioned it during a news conference the day Freed’s press release was issued. Trump cited it multiple times during his first debate with Joe Biden the next day. And in a since-deleted tweet, a Trump campaign spokesman pointed to Freed’s statement, claiming, “Democrats are trying to steal the election.”
“First at the start”
But the inspector general’s report on Thursday revealed that even before Freed made his statement, investigators had concluded that the Luzerne County case was not part of any systematic or widespread effort to commit voter fraud.
In fact, the report says, on the day the ballots were discovered, authorities said they had been accidentally thrown out by a momentary and poorly trained worker employed by a program designed to provide jobs for people with intellectual disabilities.
He was then released and the rejected votes were counted in Trump’s favor.
Freed briefed Barr on those facts and the improbability that his office would ultimately bring charges in the case, the inspector general said. Yet his report portrays both men as excited by the prospect that the incident could be used to highlight Trump’s suspicions about mail-in voting and fraud.
Freed told senior leaders in his office that Justice Department officials had praised them for being “first out in the streets” — a statement he later told inspector general investigators he understood to mean that amid the focus on election fraud in key battleground states, they were the first U.S. attorney’s office in the country “to have some specific information about a potential threat.”
Barr, meanwhile, personally briefed Trump as soon as he learned of the investigation — a move Horowitz found troubling given general Justice Department guidelines limiting communications about routine investigations to the White House.
Barr and Freed helped craft the statement about the investigation that Freed ultimately released. Barr insisted — and Freed agreed — that the press release include a note that the votes were for Trump, as the inspector general’s report shows.
Several Justice Department officials interviewed as part of the inspector general’s investigation expressed outrage at Freed’s decision not to say anything at all, and notably not to mention Trump, noting that it put the department in a position where it appeared to be taking sides.
“I remember telling him exactly,” said a former U.S. attorney who advised Freed during deliberations on what to say, “that’s the gist of everything we talked about in terms of election communications, and that in any case, if you’re not facing charges, we don’t say anything about an investigation. We just don’t do it.”
Corey Amundson, head of the Public Integrity Division, which oversees election integrity investigations, noted that it was unusual that he was not consulted before issuing any statement.
“It seemed very strange to me that all these people [who] they have a lot on their minds and [who] are in senior management positions, will be involved in issuing a press release in the Middle District of Pennsylvania in a matter that not only is not covered by the indictment but also does not involve any particularly material issues,” the inspector general told investigators.
Barr: Statement had ‘intended effect’
Barr, for his part — in a letter quoted in Thursday’s report — pushed back against suggestions he did anything wrong by urging Freed to issue a statement on the matter.
“I was worried that… the silence of the department [on the investigation] contributed to unfounded speculation and potentially caused more public concern than necessary,” he said. Freed’s press release had the “intended effect.”
Freed, meanwhile, said he shared Barr’s concerns, given what he called “the history of corruption and patronage in northeastern Pennsylvania” and “the real uncertainty surrounding the election in Pennsylvania.”
“I know that almost every decision I make, [made] will be questioned and, especially in this environment, political motives will be attributed to it,” he said. “I understand that [and] “I just try to make the best decisions I can given what I have in front of me.”
While the Office of the Inspector General did not ultimately accuse Barr or Freed of specific wrongdoing, it pressed the Justice Department for several clarifications on its policies regarding what details of the investigation can be released to the White House, as well as whether public disclosure protocols apply to the attorney general.
The Office of the Special Counsel was also asked to investigate whether the actions of any of the men may have violated the Hatch Act, a federal law prohibiting public officials from using their position to influence elections, during the investigation in Luzerne County.
Ultimately, Freed’s office never filed charges over the rejected 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 office.
Despite the controversy surrounding the investigation and Freed’s statement, his successor, Acting U.S. Attorney Bruce D. Brandler, announced the end of the case in January 2021 with his own concise press release.
“The case is closed,” he wrote.