The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Reprinted with permission from the Alliance For Justice blog Yeomans Work.

Attorney General Barr repeated in his testimony before House and Senate appropriators this week that he intends to redact grand jury material from the version of the Mueller Report that he sends to Congress. He also made clear that he does not intend to seek court permission to release grand jury testimony to Congress or the public.

That raises the interesting question of why the Department of Justice was demanding documents and hauling witnesses before the grand jury to testify regarding the president, if the Department of Justice knew 1) that its policy prevented it from bringing criminal charges against the president and 2) that it would not share the grand jury testimony with Congress, which has the power to impeach.

Was the special counsel off on a lark, abusing the power of the grand jury in a hollow exercise? Of course not. Barr’s position is untenable. Congress must receive the unredacted Mueller Report, including grand jury material.

Given Mueller’s previous indictments and all that we already know about the Trump campaign’s and administration’s dealings with Russians, as well as Trump’s public attempts to undermine the investigation, Congress has an obligation to obtain all of the fruits of Mueller’s investigation. Even before release of Mueller’s report, it has a constitutional obligation to investigate. That obligation will become irresistible once it obtains the report.

Indeed, both Mueller and Barr made congressional demands for the complete report and supporting material essential; Mueller by including in his report that his investigation did not exonerate Trump of obstruction of justice, and Barr by including Mueller’s language in his letter summarizing Mueller’s conclusions. Mueller alerted Congress that he had uncovered substantial evidence that warranted congressional attention. Congress would behave irresponsibly if it failed to respond with a demand for all of the evidence.

Barr’s unwillingness to seek court approval to release grand jury material is tellingly consistent with his longstanding hostility to Mueller’s investigation. The unsolicited 19-page memorandum that he shared with DOJ and Trump’s legal team before his nomination called the obstruction of justice inquiry “fatally misconceived.”

His unsurprising, ham-handed effort to override Mueller by exonerating Trump of obstructing justice gave Trump a helpful talking point. His conclusion, however, lacked legal effect, since DOJ would not indict Trump. Rather, its principal effect was to confirm his allegiance to the Trump team and to convince Congress that he does not deserve the benefit of the doubt.

Barr’s unwillingness to share grand jury material means that he intends to withhold massive amounts of evidence from Congress, in addition to redacting from the report’s narrative information extracted from that evidence. According to Barr, Mueller issued over 2800 subpoenas. Those subpoenas produced volumes of grand jury testimony and documents that Barr intends to conceal. Unless Barr adopts a very narrow view of what constitutes grand jury material – an unlikely prospect – the report sent to Congress will resemble Swiss cheese and the supporting material, if any, will be sliced thin.

Barr could petition Chief Judge Howell of the D.C. District Court, who supervised the grand jury, for an order lifting the secrecy of material generated by the grand jury. While Rule 6(e) of the Federal Rules of Criminal Procedure imposes secrecy on grand jury proceedings, it contains exceptions that should allow release in this matter. Several courts have held that courts also retain inherent authority to release grand jury material, but the D.C. Circuit effectively took that option away last week in an unrelated case. In doing so, however, it appeared to reaffirm that one of the 6(e) exceptions should apply here.

That exception allows release of material “preliminary to or in connection with a judicial proceeding.” Grand jury material related to Watergate, Ken Starr’s investigation of Clinton, and the prosecution of Judge Alcee Hastings was released to Congress pursuant, in part, to this exception. Courts determined that impeachment was a judicial proceeding.

Trump supporters will argue that the exception does not apply because Congress has not authorized a formal impeachment inquiry. Republicans see political advantage in goading the majority into a vote to authorize impeachment proceedings. The exception, however, explicitly contemplates that the material may be produced “preliminary to” a judicial proceeding. Congress needs the information to know whether it should launch a formal impeachment inquiry. Notably, the House had not opened a formal inquiry when Starr delivered his report to Congress. The House can strengthen its legal hand by stating openly – and truthfully — that it needs the information to determine whether an impeachment inquiry is warranted.

Since Barr will not petition for release of grand jury material, the House Judiciary Committee will have to subpoena the report. When Barr refuses to include grand jury material, the committee may hold him in contempt and file suit to enforce its contempt order. In the end, the House is likely to prevail. The judicial proceeding exception provides an avenue for the court to serve the enormous public interest in Congress seeing the full Mueller Report.

House Judiciary Committee chair Jerrold Nadler appears intent on serving a subpoena as soon as Barr produces a redacted report. He should, since the enforcement process will take time.

In a final effort to convince Trump that he is completely in the fold (and that he should not be trusted by Congress), Barr testified to his concern that the FBI had spied on Trump’s campaign. He plans to look into this Trump conspiracy theory. Trump wanted a protector as his Attorney General. He chose wisely.

Bill Yeomans is the Senior Justice Fellow  at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previously served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. 


Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

The Arizona 2020 election "audit" under way

Screenshot from

As ongoing threats by Trump loyalists to subvert elections have dominated the political news, other Republicans in two key states—Florida and Arizona—are taking what could be important steps to provide voters with unprecedented evidence of who won their most close and controversial elections.

In both battleground states, in differing contexts, Republicans are lifting the curtain on the data sets and procedures that accompany key stages of vetting voters, certifying their ballots, and counting votes. Whether 2020’s election-denying partisans will pay attention to the factual baselines is another matter. But the election records and explanations of their use offer a forward-looking road map for confronting the falsehoods that undermine election results, administrators, and technologies.

In Republican-run Florida, the state is finalizing rules to recount votes by incorporating digital images of every paper ballot. The images, together with the paper ballots, create a searchable library to quickly tally votes and identify sloppily marked ballots. Questionable ballots could then be retrieved and examined in public by counting boards to resolve the voter’s intent.

“The technology is so promising that it would provide the hard evidence to individuals who want to find the truth,” said Ion Sancho, former supervisor of elections in Leon County, where Tallahassee is located, who was among those on a January 4 conference call workshop led by the Division of Elections seeking comments on the draft rule and procedures manual revisions.

Under the new recount process, a voter’s paper ballot would be immediately rescanned by an independent second counting system—separate from what each county uses to tally votes. The first digital file produced in that tabulation process, an image of every side of every ballot card, would then be analyzed by software that identifies sloppy ink marks as it counts votes. Several Florida counties pioneered this image-based analysis, a version of which is used by the state of Maryland to double-check its results before certifying its election winners.

“The fact that it has overcome opposition from the supervisors of elections is telling because the number one problem with the [elected county] supervisors is [acquiring and learning to use] new technology; it’s more work to do,” Sancho said. “The new technology doesn’t cost much in this case. Everyone has scanners in their offices already because every voter registration form by law must be scanned and sent to the Division of Elections.”

The appeal of using ballot images, apart from the administrative efficiencies of a searchable library of ballots and votes, is that the images allow non-technical people to “see” voters’ intent, which builds trust in the process and results, said Larry Moore, the founder and former CEO of the Clear Ballot Group, whose federally certified technology would be used in Florida recounts.

But Florida’s likely incorporation of ballot images into its recount procedures, while a step forward for transparency, is unfolding in a fraught context. In 2021, its GOP-majority state legislature passed election laws that are seen as winnowing voters and rolling back voting options. In other words, it may be offering more transparency at the finish line but is also limiting participation upstream.

The new recount rule is expected to be in place by this spring, months before Florida’s 2022 primaries and midterm elections. Among the issues to be worked out are when campaign and political party officials and the public would observe the new process, because the election administrators do not want partisans to intentionally disrupt the rescanning process. These concerns were raised by participants and observers on the teleconference.

The Arizona Template

In Arizona, Maricopa County issued a report on January 5, “Correcting the Record: Maricopa County’s In-Depth Analysis of the Senate Inquiry.” The report is its most substantive refutation of virtually all of the stolen election accusations put forth by Trump loyalists who spent months investigating the state's presidential election.

Beyond the references to the dozens of stolen election accusations put forth by pro-Trump contractors hired by the Arizona Senate’s Republicans, the report offered an unprecedented road map to understanding how elections are run by explaining the procedures and data sets involved at key stages.

The report explained how Maricopa County, the nation’s second biggest election jurisdiction (after Los Angeles County) with 2.6 million registered voters, verified that its voters and ballots were legal. It also explained key cybersecurity features, such as the correct—and incorrect—way to read computer logs that prove that its central vote-counting system was never compromised online, as Trump supporters had claimed in Arizona (and Michigan).

“I’ve never seen a single report putting all of this in one place,” said John Brakey, an Arizona-based election transparency activist, who has sued Maricopa County in the past and routinely files public records requests of election data. “Usually, it takes years to understand all this.”

Taken together, Florida’s expansion of recounts to include using digital ballot images, and Maricopa County’s compilation of the data and procedures to vet voters, ballots, and vote counts, reveal that there is more evidence than ever available to confirm and legitimize election participants and results.

For example, Maricopa County’s investigation found that of the 2,089,563 ballots cast in its 2020 general election, one batch of 50 ballots was counted twice, and that there were “37 instances where a voter may have unlawfully cast multiple ballots”—most likely a spouse’s ballot after the voter had died. Neither lapse affected any election result.

“We found fewer than 100 potentially questionable ballots cast out of 2.1 million,” the report said. “This is the very definition of exceptionally rare.”

When Maricopa County explained how it had accounted for all but 37 out of 2.1 million voters, it noted that the same data sets used to account for virtually every voter were also used by the political parties to get out the vote. Thus, the report’s discussion of these data sets—voter rolls and the list of people who voted—offered a template to debunk voter fraud allegations. This accusation has been a pillar of Trump’s false claims and is a longtime cliché among the far right.

It is significant that this methodology, indeed the full report, was produced under Maricopa County Recorder Stephen Richer, a conservative Republican who has repeatedly said that he had voted for Trump, and was fully endorsed by Maricopa County’s Board of Supervisors, which has a GOP majority and held a special hearing on January 5 to review the findings.

In other words, the report is not just a rebuttal for the Arizona Senate Republican conspiracy-laced post-2020 review. It is a road map for anyone who wants to know how modern elections are run and how to debunk disinformation, including conspiracy theories involving alleged hacking in cyberspace.

“There is not a single accurate claim contained in [Arizona Senate cybersecurity subcontractor] CyFIR’s analysis of Maricopa County’s tabulation equipment and EMS [election management system],” the reportsaid, referring to accusations that counts were altered. “This includes the allegation that county staff intentionally deleted election files and logs, which is not true.”

When you add to Maricopa County’s template the introduction of a second independent scan of every paper ballot in future Florida recounts, what emerges are concrete steps for verifying results coming from Republicans who understand how elections work and can be held accountable.

Of course, these evidence trails only matter if voters or political parties want to know the truth, as opposed to following an ex-president whose political revival is based on lying about elections. However, more moderate Republicans seem to be recognizing that Trump’s stolen election rhetoric is likely to erode their base’s turnout in 2022, as Trump keeps saying that their votes don’t matter.

“You’ve got Republican buy-in,” said Florida’s Sancho, speaking of his GOP-ruled state’s embrace of more transparent and detailed recounts. “And Republicans, more than anyone else, should be concerned about whether their votes were counted as cast and as the voter intended.”

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

Keep reading... Show less

Michael Carvajal

Photo by Tom Williams via Reuters

The search is on for a new director of the federal Bureau of Prisons after Michael Carvajal announced on January 5 that he’s retiring from his appointed post and will leave when the Department of Justice finds his replacement.

The Biden Administration needs to replace Carvajal with a person who knows prisons inside and out: someone who’s been incarcerated before.

When President Joe Biden announced his first round of cabinet picks just weeks after being elected in 2020, then Vice President-elect Kamala Harris said: “When Joe asked me to be his running mate, he told me about his commitment to making sure we selected a cabinet that looks like America – that reflects the very best of our nation.

Keep reading... Show less
{{ }}