The Justice Department said Thursday that it is investigating “potential issues with mail-in ballots” in the swing state of Pennsylvania and, in a highly unusual disclosure, revealed that several ballots marked for President Donald Trump were “discarded.”
US Attorney David Freed said a preliminary inquiry determined that nine “military ballots were discarded” and that seven of them “were cast for presidential candidate Donald Trump.” The incident occurred in Luzerne County, a swing county in northeastern Pennsylvania that is home to Wilkes-Barre. Trump flipped the county in 2016 after years of narrow Democratic wins.
The statement was highly unusual because it highlighted the fact that the ballots were marked for Trump – which immediately raised suspicions that the Justice Department was trying to furnish material that Trump could promote for political gain. Indeed, Trump and other White House aides used the information, even before it was made public, to attack mail-in voting.
Election officials go to extraordinary lengths to protect ballot secrecy. It’s unclear how investigators figured out who the votes were for, and why they made that information public.
Additionally, the Justice Department typically does not comment about ongoing investigations, though there are rules allowing it when there is a public interest at stake, like election integrity.
The federal probe was apparently triggered by a request from Luzerne County District Attorney Stefanie Salavantis, a Republican who announced Tuesday that federal investigators were assisting with an election issue. Freed, also a Republican, was appointed by Trump in 2017. A spokesperson for Salavantis told CNN that the nine affected ballots are for the general election. Many military and overseas ballots were sent out last weekend.
“It seems worth investigating, but I think it is really weird that they say who the votes were cast for,” CNN election law analyst Rick Hasen said in response to the announcement. “I think it will become fodder for the President to claim that people are messing with ballots in Pennsylvania.”
While any missing ballots can cause a problem, the issue appears to be miniscule, based on statements from investigators. More than 6.1 million Pennsylvanians voted in the 2016 election.
In a letter to Luzerne County Elections Director Shelby Watchilla released by the Justice Department Thursday evening, Freed said the investigation has so far revealed that staff had opened the mail-in ballots because the envelopes appeared similar to the ballot application envelopes.
“It was explained to investigators the envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests,” the letter said.
“Our interviews further revealed that this issue was a problem in the primary election – therefore a known issue – and that the problem has not been corrected.”
Freed did not allege any political motivation in the incident in the letter.
Trump uses news to criticize mail-in voting
In an interview earlier on Thursday morning, before the Justice Department announcement, Trump seized on the Pennsylvania situation to question the legitimacy of the 2020 election. It wasn’t clear at the time what he was referring to, and there had been local reports of an inquiry, but his comments generally align with the information released by Freed on Thursday afternoon.
Trump, who had apparently been briefed, told Fox News Radio, “They found six ballots in an office yesterday, in a garbage can. They were Trump ballots. Eight ballots, in an office yesterday in a certain state. … This is what’s going to happen. And we’re investigating that.”
Shortly before the Justice Department announcement, White House press secretary Kayleigh McEnany previewed it to reporters.
“I can confirm for you that Trump ballots, ballots for the President, were found in Pennsylvania, and I believe you should be getting more information about that shortly,” McEnany said.
The initial news release from the Justice Department said “all nine ballots” were cast for Trump. About two hours later, the department deleted that press released from its website and issued a corrected announcement, which stated that seven of the nine presidential votes were for Trump.
“Two of the discarded ballots had been resealed inside their appropriate envelopes by Luzerne elections staff prior to recovery by the FBI and the contents of those 2 ballots are unknown,” the updated press release said. It also said not all ballots could be attributed to a specific voter.
Pennsylvania Attorney General Josh Shapiro, a Democrat, praised the announcement. But unlike Trump, Shapiro said it should give voters more confidence in the mail-in voting process.
“We’ll have to wait and see exactly what Unites States Attorney Freed and the FBI and the local district attorney came up with, but I think that should give the public confidence in knowing that all of us in law enforcement are doing our job to make sure that legal, eligible votes are counted,” Shapiro said Tuesday afternoon in an interview with CNN’s Pamela Brown.
Experts question DOJ motives
Trump and Attorney General William Barr have spent months attacking mail-in voting, and the Pennsylvania announcement is sure to bolster their efforts.
They have promoted debunked conspiracy theories and blatant disinformation to claim that mail-in voting leads to massive fraud. Election officials from both parties have rejected these claims and say there are tried-and-true safeguards prevent and quickly detect fraud.
The unorthodox Justice Department announcement is sure to fuel suspicion that Barr is using the Justice Department as a political weapon to help Trump’s reelection.
In recent months, Barr has aided Trump’s effort to label Democratic-run cities as “anarchist” strongholds, and has targeted Democratic-run states over Covid-19 deaths at nursing homes. Barr has also intervened in criminal cases to help prominent Trump allies.
CNN election law analyst Jessica Huseman said it’s “odd” to send out a press release for only nine ballots. David Becker, founder of the nonpartisan Center for Election Innovation, noted in a series of tweets that the announcement didn’t say anything about the voters’ preferences in the down-ballot races, and that it said nothing about how the ballots were actually discovered.
“Speaking as a former DOJ attorney, to release a public statement with so little info, at the beginning of an investigation, is inexplicable, and law enforcement malpractice,” Becker said.
CNN’s Paul LeBlanc contributed to this report.