Barr Disputes U.S. Attorney’s Vote Fraud Claim

By Robert Farley

Posted on July 14, 2021

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Former President Donald Trump says a former U.S. attorney in Pennsylvania was forbidden by then-Attorney General Bill Barr to investigate voter fraud in the presidential election. Barr says that’s false.

A day after making the claim, Trump released a letter from former U.S. Attorney Bill McSwain — dated June 9 — in which McSwain writes that although he “received various allegations of voter fraud and election irregularities” after the election, he was “given a directive to pass along serious allegations to the State Attorney General for investigation.”

To the contrary, Barr notes that he sent a memo on Nov. 9 authorizing U.S. attorneys around the country to “pursue substantial allegations of voting and vote tabulation irregularities.”

And a spokesperson for Pennsylvania Attorney General Josh Shapiro says his office never received any referrals from McSwain.

This story is still unfolding, and we’ll lay out here what we know and don’t know so far about the dispute.

The Letter

Trump first teased the issue during a rally in Sarasota, Florida, on July 3, saying, “We have a U.S. attorney in Philadelphia that says he wasn’t allowed to go and check Philadelphia.” Trump promised he’d reveal at his next rally “who didn’t allow him.”

In a speech at the annual Conservative Political Action Conference in Dallas on July 11, Trump said that person was his former attorney general, Barr.

“But I just a day ago received a statement from the U.S. attorney, highly respected, in Pennsylvania, that Bill Barr would not allow him to investigate voter fraud. Can you believe it?” Trump said. “Now, you have to understand, Philadelphia is the second most corrupt place, so I understand, okay? So, I understand, in the nation. You know what first is? Detroit. Detroit was so corrupt. Philadelphia was so corrupt. But the U.S. attorney was not allowed to investigate what … this just came out in a letter. …He was not allowed to do his job. And I saw that. He was all enthused, and then all of a sudden it was like he was turned off. And so were others.”

Trump added, “You’ll have to get it [the letter] from him because I want to stay out of it.” But the next day he publicly released the letter, commenting “U.S. Attorney from the Eastern District of Pennsylvania was precluded from investigating election fraud allegations. Outrageous!”

McSwain, who was appointed U.S. attorney by Trump, wrote to the former president on June 9 seeking his support in the Pennsylvania governor’s race. McSwain said via Twitter that he was “pleased that he [Trump] shared my letter.”

In the letter, McSwain wrote that Trump was “right to be upset about the way the Democrats ran the 2020 election in Pennsylvania – it was a partisan disgrace.” But McSwain, who was the top federal prosecutor in the Philadelphia area until he stepped down in January, claimed his hands were tied.

McSwain, June 9: On Election Day and afterwards, our Office received various allegations of voter fraud and election irregularities. As part of my responsibilities as U.S. Attorney, I wanted to be transparent with the public and, of course, investigate fully any allegations. Attorney General Barr, however, instructed me not to make any public statements or put out any press releases regarding possible election irregularities. I was also given a directive to pass along serious allegations to the State Attorney General for investigation – the same State Attorney General who had already declared that you could not win.

I disagreed with that decision, but those were my orders. As a Marine infantry officer, I was trained to follow the chain of command and to respect the orders of my superiors, even when I disagree with them.

On Twitter, McSwain reiterated his reluctance to pass on voter fraud allegations to Shapiro, the state attorney general who is now a Democratic candidate for governor. “On principle, I disagreed with referring ANY election cases to AG Shapiro because he was conflicted, having declared BEFORE the Presidential election that the result was preordained. Only a fake prosecutor says something like that.

McSwain is referring to a tweet Shapiro sent on Oct. 31 responding to a Philadelphia Inquirer story about Trump in campaign speeches sowing doubt about the upcoming election by making “baseless claims of election fraud.”

If all the votes are added up in PA, Trump is going to lose,” Shapiro wrote.

Despite McSwain’s concerns about Shapiro, a spokesman for McSwain insists the former federal prosecutor sent along allegations of voter fraud to Shapiro’s office.

Shapiro and Barr Push Back

A spokesperson for Shapiro said his office isn’t aware of McSwain having passed along any such cases for investigation.

“We received and sent multiple referrals to local, state and federal law enforcement, but received no direct referrals from Mr. McSwain’s office,” Shapiro spokesperson Jacklin Rhoads told the Philadelphia Inquirer. “This personal note to President Trump, sent seven months after the election, is the first our office has heard of Mr. McSwain’s concerns. If he was aware of allegations of voter fraud, Mr. McSwain had a duty to report and, as he knows, our office investigates every referral and credible allegation it receives.”

Barr also pushed back against McSwain’s claims in interviews with the Philadelphia Inquirer, Politico and the Washington Post.

“It’s written to make it seem like I gave him a directive,” Barr told Politico. “I never told him not to investigate anything.”

Barr said he called McSwain on July 12 after hearing about the letter.

“It’s very cutely written,” Barr said of McSwain’s letter. “He said he was going to try to thread the needle. … He said to me he didn’t want to say anything that would advance the president’s stolen election narrative, but by the same token he was going to try to thread the needle by saying some things that were literally, technically accurate.”

Barr has found himself in Trump’s rhetorical crosshairs since announcing in a Dec. 1 interview that the Department of Justice and FBI “have not seen fraud on a scale that could have affected a different outcome in the election.”

Barr said he warned McSwain that his letter gave the false impression that allegations of voter fraud were not fully investigated.

Barr noted that he issued a memo on Nov. 9, six days after the election, authorizing federal prosecutors to “pursue substantial allegations of voting and vote tabulation irregularities.”

In that memo, Barr added: “While it is imperative that credible allegations be addressed in a timely and effective manner, it is equally imperative that Department personnel exercise appropriate caution and maintain the Department’s absolute commitment to fairness, neutrality and non-partisanship.” He cautioned prosecutors to “exercise great care and judgment in addressing allegations of voting and vote tabulation irregularities” and warned that “specious, speculative, fanciful or far-fetched claims should not be a basis for initiating federal inquiries.”

Politico reported that it spoke to “one former official, who spoke on condition of anonymity” who said “McSwain’s office did aggressively investigate several election-related fraud claims and was given no ‘stand-down’ order from Washington.”

Dubious Fraud Allegation

Barr told the Washington Post that when he spoke to McSwain earlier this week, McSwain told him the “directive” to pass along serious allegations to the state attorney general involved a single allegation of “irregularities” in Delaware County, Pennsylvania.

Politico reported that the Delaware County allegation came from a Navy veteran who claimed “47 USB drives went missing during the election process in Delaware County, Pa.” The man, a poll watcher, claimed the drives could have held up to 120,000 votes.

We at FactCheck.org wrote about this claim back in December and found that it was not credible.

Delaware County officials explained to us that the vCards are used to transfer data from the paper-ballot scanning machines at each precinct to the central vote tabulating system. Adrienne Marofsky, the county’s spokeswoman, also told us “the report of 47 ‘missing’ vCards is false.”

It’s not uncommon for some vCards to be delivered after Election Day, she said.

“Within a day or so after Election Day, the vCards that had not been returned on election night were accounted for,” Marofsky said. “A number of them were simply left in the scanners by the local election board and were recovered when the scanners (which were put in sealed rolling carts called ‘cages’ at the end of the day on Election Day) were returned to the voting machine warehouse.”

Marofsky also noted that there are two fail-safes if a vCard were to be lost — the vote scanners’ hard drives hold the original data and the paper ballots are held in sealed, numbered bags in case they need to be rescanned.

Nonetheless, Barr said it wasn’t him, but rather Richard Donoghue, who was then the principal associate deputy attorney general, who told McSwain to share that case with Shapiro’s office.

Politico noted that Donoghue issued a statement responding to McSwain’s letter saying, “While I was made aware of allegations relating to conduct in Delaware County, I did not preclude DOJ personnel in Pennsylvania from investigating allegations of criminal misconduct relating to the 2020 elections or direct that any such allegations be handled exclusively by state authorities.”

“Allegations of election fraud were handled by both federal and state authorities throughout the 2020 election cycle,” Donoghue told the Washington Post. “Which authority or authorities reviewed a particular allegation turned largely on the nature of the allegation itself.”

Barr told the Philadelphia Inquirer that McSwain told him he had to write the letter to Trump “because he was under pressure from Trump and for him to have a viable candidacy he couldn’t have Trump attacking him.”

But Barr said the letter “is written in a very deceptive way that is intended to convey an impression, it’s a false one, that he was restrained from looking into election fraud.”

“Any suggestion that McSwain was told to stand down from investigating allegations of election fraud is false,” Barr told the Washington Post. “It’s just false.” McSwain’s claims, Barr added, “appeared to have been made to mollify President Trump to gain his support for McSwain’s planned run for governor.”

McSwain responded to Barr’s comments with a tweet saying that “everything” in his letter to Trump “is 100% true.”

“If Bill Barr wants to run to WaPo to complain about me telling the truth, that’s OK – it doesn’t bother me,” McSwain said, adding in a second tweet, “I have more important things to be concerned about than Bill Barr’s feelings.”

There are obviously competing versions regarding what McSwain was told about investigating serious allegations of voter fraud following the 2020 election. 

But let’s take a close look at the two critical sentences in McSwain’s letter.

In his letter, McSwain says Barr “instructed me not to make any public statements or put out any press releases regarding possible election irregularities.” Two anonymous sources “familiar with the matter” told the Philadelphia Inquirer that after the election, McSwain wanted to hold a press conference making a general complaint about how Pennsylvania administered its election, without making any specific charges related to voter fraud. Barr acknowledged to the Inquirer that he put a stop to that.

“He wanted to not do the business of the department, which is to investigate cases, but instead go out and flap his gums about what he didn’t like about the election overall,” Barr said.

McSwain followed that sentence with a passive one that claims, “I was also given a directive to pass along serious allegations to the State Attorney General for investigation.” Note that he does not say Barr directly told him to pass along those allegations. If it was Donoghue he was referring to, as we noted above, Donoghue said that “state and federal authorities referred matters to one another” but that “did not preclude DOJ personnel in Pennsylvania from investigating allegations of criminal misconduct relating to the 2020 elections or direct that any such allegations be handled exclusively by state authorities.”

And if McSwain’s complaint about turning over allegations to the state attorney general related just to the Delaware County case — as Barr says McSwain told him — that allegation turned out not to be credible.

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