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

It is generally understood that President Donald Trump picked William Barr to be attorney general because Barr had written a 19-page memo debunking Special Counsel Robert Mueller’s possible obstruction of justice case against Trump. Now Barr has performed the function for which Trump selected him. Barr’s decision to override Mueller’s refusal to exonerate Trump of obstruction of justice in the Russia probe plunked a giant thumb on the scales of justice and gave Trump the political message he so desperately craved: no collusion and no obstruction – complete exoneration. As commentators lavished praise on our institutions for allowing the Mueller investigation to reach its conclusion, Barr reignited cynicism about the apolitical nature of law enforcement.

Barr acknowledged in his letter that Mueller had concluded there was significant evidence of obstruction of justice, but had decided not to make a prosecution-style decision. That sounds like a punt by Mueller, but I think it is more properly read as an acknowledgment that the Department of Justice would not indict a sitting president, so there was no need to decide whether DOJ could prosecute. Rather, Mueller recognized that the ultimate determination regarding consequences for obstruction rests with Congress. He, therefore, laid out the evidence, for and against, for Congress’s enlightenment.

Barr, however, interpreted Mueller’s failure to reach a conclusion as passing the final decision to the attorney general. That’s an odd determination unless Mueller expressly asked Barr to make the call. We have no indication that he did so. Given DOJ policy against indicting a sitting president, there is no need for DOJ to decide whether the president could be prosecuted. The only call is for Congress to make: whether the president should be impeached — and impeachment does not require that the president have been adjudged guilty of a crime.

Barr’s intervention appears nakedly political. His move strikes at the very reason we have special counsels. They are necessary for the investigation and prosecution of high-ranking government officials. The notion is that the potential for actual partiality or the appearance of partiality is too great when government officials investigate their own. The idea is to remove these investigations from the political chain of command to the greatest extent possible. Barr’s refusal to accept Mueller’s conclusion is precisely the kind of political intervention the special counsel system is designed to avoid. The Mueller report now goes to Congress with a cover letter from the attorney general stating that Trump did not commit the crime of obstruction of justice, rather than simply stating that there exists substantial evidence of obstruction of justice and laying out the evidence.

Obviously, it is essential that Congress and the public see Mueller’s report as quickly as possible. While Mueller may not have pursued a conspiracy indictment for illegal cooperation with Russia, Congress and the public still need to see whether the investigation uncovered dealings between Russia and the Trump campaign. To state the obvious, our standard for evaluating a president must demand more than the fact that he has not been convicted of crimes.

Regarding obstruction, Mueller obviously thought there was troubling evidence against the president. That should be Congress’s starting point, rather than Barr’s gratuitous overriding of Mueller. Congress will need the full report and essential supporting documents to acquit its constitutional obligation of determining whether to commence impeachment proceedings. It will also need to hear directly from Mueller and Barr.

Congress has at least three hurdles to surmount to get the report, but it must succeed. First, the report must be scrubbed to remove classified material or information that might affect ongoing investigations. The report also likely contains grand jury material. Grand jury material is secret and its disclosure can be a felony. It can be made public by court order, but DOJ or Congress will have to seek one and the final decision whether the need for the information surmounts the interest in grand jury secrecy rests with the court.

Finally, the president can assert executive privilege over communications with his close advisors and their communications with others designed to obtain information to advise the president. Executive privilege can also extend to matters involving national security and law enforcement. While executive privilege yielded to a criminal trial subpoena for the Watergate tapes, and should yield if Congress is seeking the evidence as part of an impeachment inquiry, the president may choose to litigate, arguing that he must protect the privilege for future chief executives. Prior to the report’s completion, there was bipartisan support for its release, including from the president. It will be disappointing if the president and his supporters develop a new affection for opacity.

Even with a cooperative executive branch, Mueller’s report will not reach Congress or the public without some delay. A recalcitrant executive can extend the delay. The task for Congress and the public is to ramp up the pressure to share the full report and supporting materials as quickly as possible. After all, according to Trump, he has been cleared. He should want the public to see the evidence.

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 previousy 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. 




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The Arizona 2020 election "audit" under way

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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.

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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.

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