For decades, federal prosecutors have been told not to mount election fraud investigations in the final months before an election for fear they could depress voter turnout or erode confidence in the results. Now, the Justice Department has lifted that prohibition weeks before the presidential election.
The move comes as President Trump and Attorney General William P. Barr have promoted a false narrative that voter fraud is rampant, potentially undermining Americans’ faith in the election.
A Justice Department lawyer in Washington said in a memo to prosecutors on Friday that they could investigate suspicions of election fraud before votes are tabulated. That reversed a decades-long policy that largely forbade aggressively conducting such inquiries during campaigns to keep their existence from becoming public and possibly “chilling legitimate voting and campaign activities” or “interjecting the investigation itself as an issue” for voters.
The memo creates “an exception to the general non-interference with elections policy” for suspicions of election fraud, particularly misconduct by federal government workers, including postal workers or military employees; both groups transport mail-in ballots. The exception allows investigators to take overt investigative steps, like questioning witnesses, that were previously off limits in such inquiries until after election results were certified.
The move also allows prosecutors to make more of a spectacle of election fraud in the weeks before the vote on Nov. 3. The U.S. attorney in New Jersey, Craig Carpenito, promoted an arrest on Wednesday of a postal worker suspected of discarding mail, including dozens of ballots, which were found and put back in the mail.
The New York Times reviewed portions of the memo. ProPublica earlier reported details of it on Wednesday.
A longtime standard at the Justice Department keeps investigators from taking any action related to an election or candidates within a couple of months of Election Day out of the concern that even the perception of law enforcement involvement could erode confidence in the vote. The former F.B.I. director James B. Comey was widely criticized in 2016 for announcing the bureau’s decision not to recommend charges in its inquiry into Hillary Clinton’s email server and reopening the case 11 days before Mr. Trump’s upset win.
The Justice Department said that the new memo was not a political act and that no political appointee directed, prepared or issued it.
“Career prosecutors in the Public Integrity section of the department’s Criminal Division routinely send out guidance to the field during election season,” said Matt Lloyd, a department spokesman. “This email was simply part of that ongoing process of providing routine guidance regarding election-related matters.”
Department officials also said that a career lawyer in the criminal division advised all U.S. attorneys on the issue over the summer as part of a broader briefing on election-related fraud, and that the department has always recognized that exceptions to the policy existed.
The new guidance stoked fears that Mr. Trump’s political appointees, led by Mr. Barr, were wielding the power of the Justice Department to help his re-election bid. Democrats, civil rights lawyers and former department officials from Republican and Democratic administrations have been on alert this year for unusual political moves by the department in service of the president’s relentless — and false — claims that the United States’ election system is being undermined by pervasive fraud.
Specifically, they have been wary of late-breaking cases based on voter fraud accusations that create more headlines than substantive charges. Republicans have sought for years to push the notion that there is a voter fraud problem in the United States, despite little evidence to back up their claims.
During Mr. Trump’s presidency and his re-election bid, conservative efforts to find voter fraud have gone into overdrive. Shortly after he defeated Mrs. Clinton in 2016, he claimed that millions of Americans had voted illegally for her and he appointed a loyalist to look into the matter. No evidence was ever found to back up Mr. Trump’s contention. But that has not stopped him from continuing to repeat the claims, particularly in recent months as he campaigns.
Democrats and election and legal experts have said Mr. Trump and Mr. Barr are laying the groundwork to claim that the election was rigged if the president loses.
The Justice Department could “build a narrative, despite the absence of any evidence, of fraud in mail-in voting so Trump can challenge the election results if he loses,” said Joyce Vance, a former U.S. attorney in Alabama under the Obama administration.
“They’ve told us this is their strategy, and we’re watching them implement it,” Ms. Vance said.
Wendy R. Weiser, the director of the Democracy Program at the Brennan Center for Justice, said she did not believe the justification for altering the policy had merit. “If they want to deter misconduct that they’re worried about, they can remind people of the law and announce that they’re going to prosecute any violators to the fullest extent of the law,” she said. “That does not require an exception to this longstanding and sensible policy.”
Some election experts said that the new policy on election fraud inquiries was a stark shift after Mr. Comey’s effect on the 2016 election.
“Historically, the D.O.J. has tried to avoid taking any actions that could have influence on an election, so, for example, holding indictments or announcing investigations that could have an effect on elections,” said Richard L. Hasen, a professor of law at the University of California, Irvine.
He predicted that the memo could lead to many more announcements like last month’s highly unusual disclosure by a federal prosecutor in Pennsylvania who detailed an open voter fraud investigation into nine discarded ballots. The revelation helped bolster Mr. Trump’s false claims that mail-in voting was rife with fraud, even though the state’s top election official said later that the episode was “a bad error” and “not intentional fraud.”
The announcement was unusual both for revealing an open investigation and for its disclosure that some of the ballots had been cast for Mr. Trump, a fact experts said was immaterial to the investigation and helped feed his baseless attacks on mail-in voting.
The policy shift, Mr. Hasen said, “encourages more of these announcements that could, these small-bore things, be treated as evidence of rigging and then promoted at a higher level.”
Mr. Barr has also echoed the president’s claims on voter fraud.
In recent weeks, the attorney general has also made accusations unsupported by evidence that voting by mail could lead to fraud and abuse. In an interview last month with CNN, he asserted that the Justice Department had indicted a man in Texas who had collected nearly 2,000 ballots from people who could not vote and illegally cast them for the candidate of his choice.
After The Washington Post questioned the account, a department spokeswoman said that no such indictment existed and that Mr. Barr had relied on a memo with inaccurate information.
He has also said that he had no “empirical evidence” that mail-in ballots would lead to mass voter fraud, pointing instead to “common sense.”
“I don’t have empirical evidence that on this scale, you know, these problems were materialized,” he said during an event last month for Hillsdale College.
In an unusual show of insubordination, federal prosecutors in Massachusetts and Seattle have publicly accused Mr. Barr of essentially working on behalf of the Trump campaign, citing his decision to intervene in cases against the president’s allies and to amplify the criticisms that Mr. Trump has lobbed against Black Lives Matter on the campaign trail.
One of them, Michael Dion, wrote in a letter to The Seattle Times that Mr. Barr had turned the Justice Department “into a shield to protect the president and his henchmen.”
“Barr does these things because his goal is to protect his master, rather than the American people,” Mr. Dion wrote. A Justice Department spokeswoman declined to comment on the letters.
Nick Corasaniti and Jim Rutenberg contributed reporting.