Former Justice Department lawyers and prominent Democrats are warning the president against a blatantly political exercise.
President Donald Trump has put himself in a vexing position with his promise of a “major” voter fraud investigation, with little chance of proving his unsubstantiated claim that millions voted illegally in November and a high probability the effort will be panned as a fruitless political exercise.
If Trump tries to kick-start an aggressive criminal investigation, he is sure to fuel charges he is politicizing the Justice Department. If instead he chooses a more modest, blue ribbon panel-style inquiry, Trump is likely to have trouble attracting prominent Democrats who could give the effort more legitimacy.
Former Justice Department officials warned Wednesday that conducting a presidentially directed, wide-scale probe into election fraud would put top lawyers there in the uncomfortable position of having to pass judgment on a claim repeatedly leveled by Trump, but lacking in evidence: that 3 million to 5 million people voted illegally in the election that delivered him to the White House.
“If you do launch an investigation like this, prosecutors would be under enormous pressure not to find that the president was wrong. What if the report is inconclusive?” said Matthew Miller, a Justice Department spokesman under Attorney General Eric Holder. “Voter fraud is a crime, and DOJ usually begins investigations when they find evidence a crime was committed, not because the president has endorsed a conspiracy theory for which there is no evidence. Now, we’re in a position where DOJ has to launch an investigation into a supposed crime just because the president is making up facts?”
Such an effort would also conjure up memories of an anti-voter-fraud drive launched under President George W. Bush a decade ago. That initiative — and the firing of some U.S. attorneys who were reluctant to go along with it — led to a major political imbroglio that prompted the resignation of Attorney General Alberto Gonzales.
“The push on voter fraud … became a more broadly politicized effort that led to a massive scandal and ultimately the resignation of the attorney general of the United States,” said Wendy Weiser, an attorney with the liberal Brennan Center. “I am worried that raising these issues create a risk of politicizing the Department of Justice along the lines of the Bush administration, but I’m worried this could get even worse.”
Perhaps due to those sensitivities, White House press secretary Sean Spicer suggested Wednesday that Trump is more likely to pursue a commission that would examine the sources and scope of potential fraud rather than trying to find cases to prosecute. Spicer described the planned inquiry not as an investigation, but a more genteel-sounding “study.”
“Part of the reason we need to do a study is … there’s a lot of people that are dead that are on rolls, that are voting in two places or that are on the rolls in two different states, sometimes in three different states,” Spicer said at his daily briefing for reporters. “I think taking the necessary steps to study and track what we can do to both understand the scope of the problem and, second, how to stop the problem going forward is definitely something that’s in the best interests.”
“The first step is for him to get this — I don’t want to call it a task force because it’s not there yet, but this effort underway that can look at the scope of the problem and then make some recommendations,” Spicer added, promising there will be “more on that as the week goes on and we’ll be able to examine that further.”
Trump revived the voter fraud issue at a meeting with congressional leaders Monday by claiming he would have won the popular vote except for 3 million to 5 million people who he asserts voted illegally. On Tuesday, Spicer was noncommittal about any investigation into the fraud, but Trump took to Twitter early Wednesday to call for a thorough inquiry.
“I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and … even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!” Trump declared.
Even a high-profile commission would be something of a high-wire act, since Democrats will insist that controversial voter ID laws also be part of any such review if they take part.