Last week, the Jan. 6“Committee” featured video clips from former U.S. Attorney General Bill Barr during its hearing on the violence that erupted at the capitol on Jan. 6, 2021. For the few Americans following the show trial, Barr’s testimony seemed a denial by former President Donald Trump’s top law enforcement officer of any legitimate basis to challenge the outcome of the November 2020 election.
To Democrats, this proved Trump sought to steal the White House from Biden via a coup. To Republicans, Barr revealed himself as a traitor uninterested in investigating voter fraud. Neither view is correct.
In his deposition, Barr testified about his disagreements with the then-president about claims of election fraud. Barr resigned as attorney general on December 14, 2020, in the aftermath of the November general election as Trump continued to dispute the outcome. The day he resigned, Barr explained, when he walked in to speak with the president,
[Trump] went off on a monologue saying that there was now definitive evidence involving fraud through the Dominion machines and a report had been prepared by a very reputable cybersecurity firm, which he identified as Allied Security Operations Group. And he held up the report and he had — and then he asked that a copy of it be made for me. And while a copy was being made, he said, you know, ‘This is absolute proof that the Dominion machines were rigged.’
Barr testified to the committee that he had told the president “they’ve wasted a whole month on these claims — on the Dominion voting machines and they were idiotic claims.” There was “absolutely zero basis for the allegations,” Barr explained, yet people believed there was “this systemic corruption in the system and that their votes didn’t count and that these machines controlled by somebody else were actually determining it, which was complete nonsense.”
Then-President Trump also raised what he called “the big vote dump” in Detroit, Barr explained, where “people saw boxes coming into the counting station at all hours of the morning and so forth.” Barr told the committee that he had explained to Trump that there were approximately 630 precincts in Detroit, “and unlike elsewhere in the state, they centralize the counting process. So they’re not counted in each precinct, they’re moved to counting stations. And so a normal process would involve boxes coming in at all different hours.” Barr said point blank, “There’s no indication of fraud in Detroit.”
The committee also heard testimony that Barr had directed B.J. Pak, the then-U.S. attorney for the Northern District of Georgia, to investigate a security tape from the State Farm Arena in Atlanta that Trump believed showed a suitcase of illegal ballots secreted beneath a table being pulled out after election workers had been sent home for the night. Pak explained they investigated the claims and that the longer segment on the video established the alleged black suitcase was actually an official lockbox where ballots were kept safe.
The bottom line, according to Barr’s testimony, was that he “had not seen any widespread election fraud that would question the outcome of the election,” and that “the stuff” Trump’s people “were shoveling out to the public were bullsh-t. . . the claims of fraud were bullsh-t.”
Detroit and Atlanta Weren’t the Only Concerns
Claims of election fraud, however, represented but a portion of Trump’s challenges to the November 2020 results. Also, that the above claims were “bullsh-t” says nothing about whether there were systemic violations of election law and illegal voting. Nor were those questions ones for the attorney general or the U.S. attorneys investigating allegations of fraud.
Barr made this point in his testimony when he explained that he had told Trump “the department doesn’t take sides in elections, and the department is not an extension of — of [Trump’s] legal team. And our role is to investigate fraud.” Barr’s testimony also made clear that the U.S. Department of Justice investigated claims of fraud, such as the supposed “suitcase” of ballots in Atlanta.
But what Barr didn’t investigate—and indeed shouldn’t have investigated—were the many violations of state election law highlighted by Trump’s legal team in their lawsuits challenging the election results. For instance, in Georgia, the state election code requires residents to “vote in the county in which they reside, unless they changed their residence within 30 days of the election” and “outside of the 30-day grace period, if people vote in a county in which they no longer reside, ‘their vote in that county would be illegal.’”
Trump’s legal team obtained solid evidence that as many as 30,000 Georgia residents voted illegally in their prior county in 2020. Trump never had his day in court on this challenge, though, which theoretically could have resulted in Georgia’s election results tossed.
That’s not the business of the attorney general, however, so those Republicans seeing Barr as derelict misunderstand his role. Likewise, those Democrats championing Barr’s words, believing it establishes a coup attempt by Trump, ignore that his testimony focused solely on election fraud.
Dust-Up About Alleged Vote Trafficking
The former attorney general’s testimony concerning vote harvesting perfectly illustrates the misplaced role both the right and the left sought to ascribe to Barr. During last week’s Jan. 6 Committee hearing, Barr testified it was his “opinion then” and his “opinion now” “that the election was not stolen by fraud.” He added that he hadn’t seen anything since the election that changed his “mind on that, including the ‘2,000 Mules’movie.”
The “2,000 Mules” movie, produced by Dinesh D’Souza, “includes information about an investigation by election integrity group True The Vote and features its founder Catherine Engelbrecht and its election intelligence analyst Gregg Phillips.” D’Souza’s film explains True The Vote’s use of “GPS surveillance geolocation data emitted by cellphones to help identify phones in key battleground states that made numerous trips to multiple election drop boxes and, in Georgia, to non-profits which the film does not identify.” The movie also includes videos “of persons placing multiple ballots into drop boxes—which is illegal in some states, including Georgia, unless those ballots are for family members.”
Barr told the committee that both he and the Georgia Bureau of Investigations were unimpressed with the use of cellphone geolocation data because, “if you take 2 million cell phones and — and figure out where they are physically in a big city like Atlanta or wherever, just by definition you’re going to find many hundreds of them have passed by and spent time in the vicinity of these boxes.”
The former attorney general added, though, that he held “his fire” on “the photographic evidence…because I thought, well, h-ll, if they have a lot of photographs of the same person dumping a lot of ballots in different boxes, you know, that’s hard to explain.” There “was a little bit of” photographic evidence from “2,000 Mules,” Barr said, but he found “it was lacking,” and that it “didn’t establish widespread illegal harvesting.”
In response to Barr’s deposition testimony, the “2,000 Mules” producer took to Twitter, challenging the former attorney general to a public debate. “What do you say, Barr?” D’Souza tweeted. “Do you dare back up your belly laughs with arguments that can withstand rebuttal and cross-examination?” D’Souza added in comments to The Epoch Times, “The hearings are one-sided propaganda, not an attempt to get to the truth.” The producer then invited people to view the evidence in “2,000 Mules” and judge for themselves.
Vote Trafficking Isn’t the AG’s Purview
Some Republicans saw Barr’s dig at D’Souza’s movie as proof the former attorney general was “totally disinterested” in election fraud, while Democrats framed Barr’s comments as establishing Trump’s attempt at a coup. Ignored by both sides, however, was what Barr said next:
The other thing is people don’t understand is that it’s not clear that even if you can show harvesting that that changes the — or the results of the election. The courts are not going to throw out votes and then figure out what votes were harvested and throw them out. You’d still — the burden on the challenging party to show that illegal votes were cast, votes were the result of undue influence or bribes or there was really, you know, the person was non compos mentis. But absent that evidence, I just didn’t see courts throwing out votes anyway.
With these few sentences Barr capsulized the disconnect between what many Trump voters believed the attorney general and federal prosecutors’ roles to be following the November 2020 election, and the reality that the Department of Justice’s focus rests on provable federal crimes. Barr tasked federal prosecutors with investigating allegations of widespread fraud, such as the manipulation of the Dominion voting machines and the supposed secreted suitcases of hidden ballots. U.S. attorney offices found the charges unfounded. And while ballot harvesting may be illegal under some states’ election codes, for the Department of Justice to get involved, more than that would be needed.
But even then, as Barr noted, that doesn’t undo the election, or rendered Georgia, Michigan, or Pennsylvania’s results void. Rather, courts hear and decide election challenges, and such challenges extend far beyond issues of election fraud. Therein is the reason Democrats’ parading of Barr’s testimony is also misplaced.
While Barr could testify concerning the cases of voter fraud the Department of Justice investigated, in the aftermath of the November 2020 election the former attorney general did not scrutinize, nor should he have, violations of state election law or potential violations of the Equal Protection Clause caused by the states’ disparate standards applied during the election.
Evidence of Widespread Illegal Votes
And Trump’s legal team had solid evidence of systemic violations of the election code and the widespread counting of illegal votes, as well as potential Equal Protection violations. Further, in the case of Georgia, there were enough illegal votes cast to likely render the state’s election results void.
Attorney General Barr, however, lacked both the authority (and the tools) to render judgment on matters of state election law. His deposition testimony to the committee also suggests that matters of election law remain outside his wheelhouse, as a court need not identify the ballots illegally harvested or cast to rule the election results invalid, as Barr seemed to suggest. Rather, under Georgia election law, if the “evidence established that there are more illegal or irregular votes than the margin of victory, the remedy is a new election.”
In other words, for Georgia’s results to be undone, Trump only needed to establish there were 11,780 illegal votes; he did not need to identify the illegally cast ballots and establish they represented votes for Biden in sufficient numbers to render him the winner.
That’s why, in his widely misrepresented telephone call with the Georgia Secretary of State Brad Raffenperger, Trump said, “All I want to do is this: I just want to find 11,780 votes.” Trump’s legal team had found the votes, but the Georgia courts refused to timely consider Trump’s challenges.
Why Unconstitutional Voting Was Allowed
Likewise, many of the issues Trump’s legal team raised after the general election and before the results were certified, remained unanswered until a year or more later, when state courts declared the procedures used in November 2020 illegal or unconstitutional.
Nothing Barr did or could have done could have altered the reality that there is insufficient time between the November election and the certification of the vote for states to do much more than a recount and audit, and the Department of Justice to conduct a high-level investigation of what would need to be widespread and obvious fraud to be caught in time to change the outcome of an election.
Yet evidence accumulated since Biden was certified the winner of the 2020 election makes clear that in every swing state, systemic violations of the election code occurred. While moving to the widespread use of mail-in voting in the name of Covid-19 exacerbated the problems, post-election scrutiny of the last general election reveals that every defect in our electoral system identified in 2005 by the bipartisan Commission on Election Reform, co-chaired by Democrat Jimmy Carter and Republican Jim Baker, remains a problem today.
At the time, Carter and Baker warned in the commission’s 100-plus page report that “elections are the heart of democracy” and “if elections are defective, the entire democratic system is at risk.” The commission added as a corollary to that first principle that “confidence in elections matters equally, and in fact “is central to our nation’s democracy.”
So, when the Jan. 6 Committee show trial finally ends, Americans need to remember election integrity is not about Trump or Barr, nor Democrats or Republicans: It is about our country and her future. That future depends on a serious revamping of the American electoral system—and soon.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.