Noah Feldman: Barr’s election warnings are death by 1,000 legalisms

Even before Attorney General William Barr’s reported suggestion that protesters be prosecuted for sedition, and that the mayor of Seattle could be targeted with a criminal investigation, the A.G. was up to his usual stunts. His repeated comments on ballots and voting demonstrate his distinctive way of distorting the truth. Call it lying by legalism.

Unlike President Donald Trump, Barr rarely makes a statement that blatantly contradicts reality. Instead, he says deeply misleading things that rely on some contorted, technical explanation. The upshot is that he must be able to tell his conscience that he isn’t lying all — while achieving the Trumpian goal of communicating a state of affairs that is contrary to the truth. There’s something distinctively lawyerly about this method. And it’s a big part of why people hate lawyers.

Case in point: At a press conference in Arizona, Barr said “there’s no secret vote” when you mail in your ballot as part of absentee or mail-in voting. “The government and the people involved can find out and know how you voted,” he insisted, “and it opens the door up to coercion.”

Fact-checkers hastened to point out that Barr was ignoring laws and procedures that are created specifically to ensure that no one can associate your vote on your mail-in ballot with your particular name and identifying information. Some states have you put your ballot inside a sealed envelope that is itself inside another envelope that has your information on it. In other states, laws prohibit revealing the vote on the ballot while the identity of the voter is being verified. Put simply, Barr distorted the truth.

Yet Barr could nevertheless defend himself by saying that, strictly speaking, election officials who choose to break the law and ignore their own procedures could conceivably connect a mail-in ballot with the identity of the voter. In this extremely narrow sense, Barr can claim that he wasn’t “lying”: The possibility that he describes does logically exist.

The same kind of hairsplitting was on display when Barr was asked by Wolf Blitzer about Donald Trump’s statement in North Carolina that his voters should try to vote twice, once by mail and once at the ballot box. Barr didn’t say that Trump was joking. Instead, when asked by Blitzer about the fact that voting twice in North Carolina is a felony, Barr replied, “I don’t know what the law in a particular state says.”

It does not take any special legal expertise to realize that voting twice is against the law. But Barr could make the classic lawyer’s response that he did not want to speak about a legal question — the voting laws of North Carolina — without first having researched the question. State laws differ on all kinds of topics, and no lawyer knows them all off the top of his head.

To be sure, this response by Barr is disingenuous. He could have said that, as a general matter, voting twice is against the law, even if he added that he did not know North Carolina law in particular. Barr was obviously trying to avoid impugning his boss, the president. To do so, he told a legalistic lie — a statement that a lawyer could defend as technically true but that distorts reality.

Of course, there’s nothing new about this technique of Barr’s. It’s what he did in his most famous distortion, his misleading characterization of the content of Special Counsel Robert Mueller’s report on election interference before the report itself had been released. Barr didn’t invent legalistic lying. Sometimes lawyers arguably have to engage in this kind of conduct in order to represent their clients zealously.

But it is particularly troubling that the Attorney General of the United States is legalistically lying in an effort to undercut the democratic process of elections. (And that’s not even going into his speech Wednesday at Hillsdale College, which deserves its own column.) Instead, Barr should be out there defending the integrity of elections. The Department of Justice has a powerful role to play, legally and historically, in fighting to make elections fair and safe.

Barr should be reassuring the public that their votes will be counted and that their privacy will be protected — and that the Department of Justice will work to assure that this is so. Instead of trying to spread uncertainty and fear to dampen turnout, Barr should be upholding the rule of law and trying to make sure that voters exercise their constitutional rights to the franchise.

It sometimes feels to me that we have reached a moment in this presidency where stating the obvious — like, that the attorney general should tell the truth — has become almost boring and pointless. After all, Barr has made it crystal clear that he’s going to keep up the legalistic lying until his last day in office.

Nonetheless, it remains important to say that what Barr is doing is wrong. It’s bad. It’s a distortion of our democratic traditions and of the traditions of the Department of Justice and of Barr’s office. And future occupants of the office should take Barr’s conduct as deserving repudiation, not emulation.


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