A Tale of Two Bills: Barr v. McSwain | The American Spectator | USA News and Politics
A Tale of Two Bills: Barr v. McSwain
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Bill Barr receives the Alliance Defending Freedom’s Edwin Meese III Award for Originalism and Religious Liberty, May 20, 2021 (YouTube screenshot)

In September 2019, I was privileged to attend a private dinner hosted by The American Spectator at Washington’s Capitol Hill Club. In attendance were approximately 30 distinguished journalists, editors, commentators, and political insiders. The guest of honor was Attorney General William Barr.

The tables were arranged in an inward-facing rectangle. As we ate dinner, Barr fielded questions. The ground rules forbade public disclosure of his answers. This meeting was solely for our benefit and to help us better understand unfolding events, including, among other things, the controversial death of Jeffrey Epstein while in federal custody. As we asked questions, Barr amiably and ably responded as he tried — with limited success — to eat his dinner.

I found him to be highly intelligent, candid, witty, and articulate. He had a direct and unpretentious manner that inspired confidence.

As he spoke, I reflected that this able and accomplished man (who had previously served as attorney general in the George H. W. Bush administration) had put aside a highly successful and lucrative career in the private sector to return to the Department of Justice (DOJ), an institution that he clearly loved, in order to restore order and rid it of the ideological insanity and naked partisan politics of the Obama years.

I also appreciated the fact that he was one of the few eminent establishment Republicans who was willing to serve in the Trump administration. Donald Trump had conducted a bare-knuckled hostile takeover of the Republican Party, which had alienated and embittered many party regulars. I believed that Barr’s sense of duty to the country and concern for the Justice Department had outweighed any reservations he might have had about incurring the wrath of the “Never Trump” wing of the Republican Party as well as the vicious, mendacious, and venomous attacks of the radical Left and its corporate media subsidiary.

After dinner, I was fortunate enough to speak very briefly one-on-one with Barr. I introduced myself as a Nixon-era alumnus of the Justice Department’s Organized Crime and Racketeering Section and expressed my gratitude for his efforts to return the DOJ to its proper pre-Obama status as an apolitical law enforcement agency.

Toward the end of our conversation, I raised the Epstein case. The media were aflame with lurid conspiracy theories as to whether Epstein had committed suicide or had been murdered.

“General,” I joked, “we at The American Spectator are here to help. That’s why we have solved the Epstein case for you. Epstein wasn’t murdered, and he didn’t commit suicide. He accidentally killed himself while engaging in autoerotic asphyxiation.”

Under the ground rules for that evening, I’m not allowed to tell you Barr’s revealing reply. Suffice it to say, it was spot-on and reflected a detailed and nuanced grasp of the facts surrounding Epstein’s death. Given the breadth and depth of Barr’s official duties, it was an impressive performance.

By the time we parted, I really liked the guy.

Now fast forward to the 2020 presidential campaign. As Donald Trump drew massive and enthusiastic crowds, Joe Biden hid in his basement and Democrat operatives across the nation engaged in collusive litigation with Democrat state officials to change the rules by which mail-in ballots would be distributed, collected, and counted.

Consider, for example, Pennsylvania, where we elect our judges. In the run-up to the election, by a 4-3 majority, Democrat justices on the state Supreme Court mandated that a mail-in ballot received up to three days after Election Day had to be counted and could not be rejected merely because it was not postmarked by the statutory Election Day deadline or had a signature that didn’t match the one on record for the purported voter.

These and similar fundamental changes were put in place by Democrat officials in key battleground states even though, like Pennsylvania, those measures undermined the existing laws for orderly elections enacted by their state legislatures pursuant to Article II, Section 1, Clause 2 of the U.S. Constitution, which provides that “Each State shall appoint in such Manner as the Legislature thereof may direct, a Number of Electors.”

And so the stage was set for the massive chaos and suspect events on Election Day.

Election night, as the votes were being tallied, the first sign of controversy emerged. Fox News called Arizona for Biden, and the Trump team erupted. According to the Trump campaign, the count hadn’t been completed in Maricopa County, where the polling showed significant support for Trump. Why was Fox News calling the race before the Maricopa County ballots had been tallied? Was Fox turning on Trump, or was something else underway?

By midnight, Trump led in the key battleground states by comfortable margins, and the betting odds were three to one that he would be reelected.

Then, in an unprecedented and improbable set of coincidences, Democrat stronghold counties in Wisconsin, Michigan, Pennsylvania, and Georgia paused the counting of votes. In Fulton County, Georgia, the counting was halted due to a purported water main break at Atlanta’s State Farm Arena. Only the water main break later proved to be a leaky toilet. Nevertheless, the vote canvassers were led to believe that the water main break required a halt to the counting and were told to return to the arena in the morning. Once the coast was clear, however, a handful of individuals were caught on surveillance video pulling suitcases of ballots from under tables and repeatedly running them through the machines that tallied the votes.

That night a very scared young man who had been observing the count in Detroit contacted me to say that he and other Republican canvassers had been prevented from observing the count by persons “dressed in Antifa-style” clothing. These individuals had pushed the young man around and threatened to beat him. (I put him in contact with GOP election lawyers in Pennsylvania, who, I am told, took a statement from him.) When the counting resumed the next day, poster boards were taped over the windows of the Wayne County absentee ballot counting center, purportedly “because some of the workers nearest the windows felt concerned with people outside potentially filming them or ballots.” At about the same time came word that a “computer glitch” had inexplicably switched thousands of votes in Antrim County, Michigan, from Trump to Biden.

Meanwhile, in Philadelphia, Republican canvassers were excluded from the ballot processing room at the Pennsylvania Convention Center. After a day’s delay, during which they had to file suit in federal court seeking access to the count, the Republican canvassers were allowed inside the center. But, even then, they were penned behind barriers that were a minimum of 60 feet away from the nearest counting tables. From that distance, their mere presence constituted meaningless performance art.

Ultimately, Arizona, Georgia, Pennsylvania, Wisconsin, and Michigan certified Biden as the winner of their respective state races. The issue then became how the Republican-controlled legislatures in some of those states were going to proceed. As it turned out, none of them acted to decertify the results. For example, when a pro-Trump Republican contingent in the Pennsylvania Legislature attempted to challenge Biden’s certification, they were unable to gain sufficient support among broader elements of the party.

To knowledgeable political observers, this was unsurprising. In Pennsylvania and elsewhere, significant segments of the Republican Party were glad to be rid of the interloping Trump. They were not about to expend political capital on his behalf and weaken their electoral prospects by supporting his calls for recounts and audits of the results.

There were also lawsuits and legal challenges supported by sworn affidavits and witness statements establishing prima facie claims of election fraud. But these went nowhere since the courts declined on jurisdictional grounds to decide these cases on the merits.

There remained the supporting affidavits, the witness statements, the Atlanta surveillance video, the improbable-bordering-on-the-impossible coincidental suspensions of the ballot counts in the Democrat counties, and other evidence of voting irregularities. There was an abundance of what prosecutors call “investigative predicates” warranting investigation. So, given the obvious national security implications of a potentially stolen presidential election, some of us aging Justice Department alums wondered when, if ever, federal law enforcement was going to swing into action.

Then, on December 1, 2020, the Associated Press reported that Attorney General Barr had “declared … the U.S. Justice Department had uncovered no evidence of widespread voter fraud that could change the outcome of the 2020 election.” This unexpected and devastating announcement bolstered the Democrat and corporate media position that Trump’s claim of a stolen election was false. His own attorney general had just said so.

But, when I read the statement, I wondered what it really meant. What was the basis for Barr’s statement? Was Barr saying that the DOJ was conducting an investigation that so far had not substantiated the claim of election theft? Had there been any investigation at all?

In the Eastern District of Pennsylvania, which encompasses Philadelphia, Bill McSwain was the Trump-appointed United States Attorney from 2018 to January 2021. After graduating from Yale in 1991 and serving as a Marine infantry officer, he graduated in 2000 from Harvard Law School, where he was an editor of the Harvard Law Review.

As U.S. Attorney, McSwain had been tough, aggressive, and effective. To the extent permitted by federal jurisdiction, his office had committed substantial resources to stemming Philadelphia’s rising tidal wave of violent crime, which had been — and continues to be — left unchecked by the the city’s George Soros–supported district attorney. As McSwain fought the good fight against Philadelphia’s mindless thugs and gang-bangers, he never passed up an opportunity to point out how District Attorney Larry Krasner’s anti-victim and pro-criminal policies had failed to protect the citizens of Philadelphia.

Though we have never met, I liked McSwain just as I liked Barr. That’s why I fully expected McSwain to take a hard look at the suspicious circumstances surrounding the conduct of the ballot counting in Philadelphia and the other allegations of voting irregularities in Pennsylvania. For that matter, given the publicly available evidence, I expected the Justice Department must have launched a coordinated investigation across all the battleground states. My belief that Barr and McSwain would do the right thing remained firm.

But, as time passed, it became apparent that federal law enforcement would be taking no action. Why? Had the feds investigated and found nothing? But, in light of the known facts, how could that be?

On June 27, 2021, the Atlantic published an article by Jonathan Karl titled “Inside William Barr’s Breakup With Trump.” As described by Karl, on December 1, 2020, over lunch in the attorney general’s private dining room, Barr had told an Associated Press reporter, “To date, we have not seen fraud on a scale that could have effected a different outcome in the election.”

Karl wrote that Barr said “Republican Senate leader Mitch McConnell had been urging him to speak out since mid-November.” McConnell had told Barr that “Trump’s claims were damaging to the country and the Republican Party. Trump’s refusal to concede was complicating McConnell’s efforts to ensure that the GOP won the two runoff elections in Georgia.”

McConnell needed a Senate majority to block the agenda of the incoming Biden regime. But McConnell “also believed that if he openly declared Biden the winner, Trump would be enraged and likely act to sabotage the Republican senate campaigns in Georgia.”

McConnell told Barr that the attorney general was “in a better position to inject some reality into this situation. You are really the only one who can do it.”

Reportedly, Barr replied that he would refute Trump’s claims “at the appropriate time.”

According to Karl,

the week after the election, he [Barr] gave prosecutors the green light to investigate “substantial allegations” of vote irregularities that “could potentially impact the outcome” of the election. The move overturned long-standing policy that the Justice Department does not investigate voter fraud until after an election is certified. The theory behind the policy is that the department’s responsibility is to prevent crimes, not get involved in election disputes. Barr’s reversal of policy was interpreted by some as a sign that he might use the department to help Trump overturn the election.

On November 9, 2020, Barr had issued a memorandum to all U.S. attorneys authorizing them “to pursue substantial  allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions.” But Barr reportedly told Karl that he had

already concluded that it was highly unlikely that evidence existed that would tip the scales in the election. He had expected Trump to lose and therefore was not surprised by the outcome. He also knew that at some point, Trump was going to confront him about the allegations, and he wanted to be able to say that he had looked into them and that they were unfounded. So, in addition to giving prosecutors approval to open investigations into clear and credible allegations of substantial fraud, Barr began his own, unofficial inquiry into major claims that the president and his allies were making.

Barr told Karl, “If there was evidence of fraud, I had no motive to suppress it. But my suspicion all the way along was that there was nothing there. It was all bullshit.”

In the article, Karl states that the DOJ “ended up conducting no formal investigations of voter fraud.”

But recall the wording of Barr’s December 1 statement: “To date, we have not seen fraud on a scale that could have effected a different outcome in the election” (Emphasis added). Clearly Barr intended to give the impression to the Associated Press that “we” in the Justice Department were actively investigating the election when, according to Karl’s article, no such investigation ever took place.

And what of Barr’s November 9, 2020, memorandum authorizing U.S. attorneys to investigate? If Barr believed that the claims of election fraud were “bullshit,” was his directive for real or mere window dressing he could use to assuage President Trump? Has any U.S. attorney acted on that memorandum to investigate the election?

Earlier this week, President Trump released a June 9, 2021, letter he had received from former U.S. Attorney Bill McSwain. In that letter, McSwain stated the following:

President Trump, you were right to be upset about the way the Democrats ran the 2020 election in Pennsylvania — it was a partisan disgrace. The Governor, the Secretary of the Commonwealth, and the partisan State Supreme Court made up their own rules and did not follow the law. Even worse, the State Attorney General, Josh Shapiro — the very person responsible for the enforcement of state election law — declared days before Election Day that you could not win the election. It would be hard to imagine a more irresponsible statement by a law enforcement officer, especially during a hotly contested election. In light of such statements, it is hardly surprising that many Pennsylvanians lack faith in our state’s election results.

On Election Day and afterwards, our Office received various allegations of voter fraud and election irregularities. As part of my responsibilities as U.S. Attorney, I wanted to be transparent with the public and, of course, investigate fully any allegations. Attorney General Barr, however, instructed me not to make any public statements or put out any press releases regarding possible election irregularities. I was also given a directive to pass along serious allegations to the State Attorney General for investigation — the same State Attorney General who had already declared that you could not win.

I disagreed with the decision, but those were my orders. As a Marine infantry officer, I was trained to follow the chain of command and to respect the orders of my superiors, even when I disagree with them.

McSwain’s letter also advises Trump that he will be the Republican candidate for Pennsylvania governor in 2022 and that he “would welcome the chance to discuss this with you in person. I would be honored to have your support.”

Trump followed up release of McSwain’s letter with a statement of his own: “U.S. Attorney from the Eastern District of Pennsylvania was precluded from investigating election fraud allegations. Outrageous!”

On July 14, 2021, the Epoch Times reported that Barr told the Washington Post, “Any suggestion that McSwain was told to stand down from investigating allegations of election fraud is false. Just false.”

Barr added that McSwain’s allegation “appeared to have been made to mollify President Trump to gain his support for McSwain’s planned run” for governor of Pennsylvania.

But the Epoch Times also reported that McSwain stands by his letter to Trump.

“I have a lifetime reputation for honesty that is beyond reproach. If Bill Barr wants to run to WaPo to complain about me telling the truth, that’s OK — it doesn’t bother me, ” McSwain said in a tweet.

McSwain added, “I have more important things to be concerned about than Bill Barr’s feelings. I’m concerned about the future of PA and of our country. We need change in our politics — badly. And it will come in 2022.”

So there you have it: the tale of two Bills. Bill Barr versus Bill McSwain. Whom to believe?

As far as I’m concerned, McSwain wins this swearing contest. It grieves me to say it, but Barr’s story doesn’t hold water. That’s just my opinion, so take it for what it’s worth.

But questions remain.

First, will other U.S. attorneys weigh in on this issue?

If so, which tale of which Bill will they corroborate?

George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net and may be reached by email at kignet1@gmail.com. 

George Parry
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George Parry is a former federal and state prosecutor who practices law in Philadelphia and blogs at knowledgeisgood.net.
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