Justice Dept. OIG Releases Report on Public Statements During Election Fraud Investigation

On July 25, the Justice Department’s Office of the Inspector General (OIG) released a “Report of Investigation Into the Department’s Release of Public Statements Concerning a Luzerne County, Pennsylvania, Election Fraud Investigation in September 2020.” On Sept. 18, 2020, the Luzerne County, Pennsylvania District Attorney’s Office advised the Federal Bureau of Investigation (FBI) that a Luzerne County Bureau of Elections employee had thrown completed mail-in ballots for the November 2020 general election into a dumpster. The FBI and the district attorney’s office found that the individual had disposed of seven ballots and mishandled two other ballots. The FBI took over the investigation on Sept. 21, 2020.

On Sept. 22, 2020, the district attorney’s office issued a statement revealing that there had been “issues with a small number of mail-in ballots,” that the office had “consulted with the United States Attorney’s Office,” and that “federal authorities [had] assumed lead investigative authority of this incident.” Two days later, then-U.S. Attorney for the Middle District of Pennsylvania David Freed issued a public statement noting that the U.S. Attorney’s Office for the Middle District of Pennsylvania and the FBI had begun an inquiry into possible problems with mail-in ballots in Luzerne County. The release also stated, “At this point we can confirm that a small number of military ballots were discarded. Investigators have recovered nine ballots at this time. Some of those ballots can be attributed to specific voters and some cannot. All nine ballots were cast for presidential candidate Donald Trump.” Later in the day, the U.S. attorney’s office retracted the original statement and issued an updated one, which clarified that seven of the ballots had been cast for then-President Trump, that Luzerne election staff had resealed two of the ballots before the FBI recovered them, and that the contents of those two ballots were not known. On the evening of Sept. 24, 2020, the U.S. attorney’s office published a letter Freed had sent to the director of the Luzerne County Bureau of Elections that disclosed several additional substantive details that had come out of the investigation.

According to the Justice Department OIG report, “The selective details about the investigation included in the initial [U.S. attorney’s office] statement and the letter suggested that the actions of the individual who engaged in the conduct were intentional and likely chargeable criminally.” However, when those releases were issued, Justice Department leadership already had information that “substantially undercut this narrative—including that the subject of the investigation was mentally impaired, appeared to have discarded the ballots by mistake, and would likely not be criminally charged.” Additionally, the Justice Department had determined before November 2024 Election Day that it would not bring charges related to this matter, but it did not notify the public of this decision until after the election.

The Justice Department OIG investigation revealed that then-Attorney General William Barr called Freed twice to speak about the matter before the U.S. attorney’s office issued its first statement and that Barr had no contact with Freed after that. The OIG determined that “Barr encouraged and authorized Freed to issue the initial [U.S. attorney’s office] statement and specifically approved inclusion of the details about the discarded ballots,” but found no evidence that Barr knew of or authorized Freed’s decision to publicly issue the letter to the Luzerne County Bureau of Elections. The OIG also found that Barr briefed former President Trump about the investigation before the U.S. attorney’s office issued its statements, and told the president that the recovered ballots had been “marked for Trump”—which was not public at the time, and which Trump revealed on a radio show the next morning.

The OIG determined that although the initial public statement released by the U.S. attorney’s office was not compliant with the Justice Manual, neither Freed nor Barr “committed misconduct in issuing the statement because of ambiguity regarding the applicability of 28 C.F.R. § 50.2, which recognizes the Attorney General’s discretion to publicly disclose information about an ongoing criminal investigation that the Attorney General believes is ‘in the interest of the fair administration of justice.’” The OIG also concluded that Barr’s communications with Trump did not violate the Justice Department’s White House communications policy. However, the OIG found that Freed “violated the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials,” and that he violated Justice Department policies that require “employees to consult with [the public integrity section] before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI.”

You can read the report here or below.