Jeffrey Clark, a distinguished attorney, former U.S. Assistant Attorney General for the Civil Division, is now a Senior Fellow and Director of Litigation at the Center for Renewing America. He has been researching the claims of former Attorney General Bill Barr, who said the DOJ had done a thorough investigation of the 2020 election and found no evidence of fraud or wrongdoing.
00:00:00.200Hello, everybody. I'm Lou Dobbs. Welcome to the Great America Show.
00:00:04.260Great to have you with us as we all seek to preserve truth, justice, and, of course, the American way.
00:00:10.720It is uphill work these days, I'll admit, for all of us who care about this great country and our fellow citizens and our future.
00:00:18.820We're a nation in the clutches of the Marxist Dems now.
00:00:22.600They control the Democrat Party, this puppet president, the White House, Congress, the Senate.
00:00:28.020And those Marxists control as well the deep state, the bureaucrats throughout our federal government, the so-called administrative state, and, of course, they control our judiciary.
00:00:39.560Yes, our courts as well, with one possible but important exception, the Supreme Court.
00:00:46.020And that is a highly unreliable exception, and will remain so as long as John Roberts remains the chief justice of the high court.
00:00:54.680Roberts was once mercurial, but now he's migrated even further leftward, and one or two conservative judges have wobbled a bit over the past year.
00:03:27.220You've been researching the claims of former Attorney General Bill Barr, who said the DOJ had done a thorough investigation of the 2020 election and found no evidence of fraud or wrongdoing.
00:03:38.840Tell us, if you will, what you've found.
00:03:47.720So this story about the former AG Barr and the 2020 election I think is a good place to start is with a November 9th, 2020 memo that Barr issued.
00:04:01.240And that memo created, you know, a firestorm, shockwaves in the media because basically what it did was it changed or purported to change pre-existing DOJ policy that elections would be investigated really only after they had occurred and been fully certified, which obviously is a recipe for nothing really to happen.
00:04:24.680And so the November 9th memo swept that policy away, it would seem, saying that such a passive and delayed enforcement approach, and I'm quoting, can result in situations in which election misconduct cannot realistically be rectified.
00:04:41.640Okay, so that was the directive in November 9th to investigate what had gone on in the election six days prior.
00:04:50.060It created a lot of, you know, media attention.
00:04:53.780It led to the resignation of a career official in protest of the memo.
00:05:00.640And so, you know, it looked like the election was going to be investigated, you know, with a lot of thoroughness.
00:05:07.060And one of the sources I would point your listeners to is that the Carol Leonick book, along with her co-author, says that, you know, Barr pledged to the president that he would have, you know, investigators jumping on anything that came to light.
00:05:21.120And so that's the public facing memo and the public, you know, as paralleled internally by apparently what was said to the president, although I was not in the room for that based on the book.
00:05:32.800So what's come to light recently, I think, are three big, you know, cracks in that armor of what the public, you know, facing policy was.
00:05:45.520And, you know, I think that's what you're referring to had been making some waves lately.
00:05:49.900So, you know, do you want me to march through those three?
00:05:52.460Do you want to ask anything about the November 9 memo?
00:05:56.600Do you have any idea what the motivation was for that extraordinary departure from what had been Justice Department canon?
00:06:07.500And and already the president, the attorney general knew that Joe Biden had lied and had chosen not to intervene.
00:06:18.720So we have that background conflict after the debate, the second debate and final debate of the 2020 election in in late October.
00:06:29.820We also have the conflict that obviously the FBI dispatched its agents to go to big media, social media, big tech and shut down the October 14th story reported by the New York Post, revealing the Hunter Biden laptop and much of its content.
00:06:53.120And I just want to get some sort of sense from you of context there around those preceding events as well.
00:07:03.220So, Lou, on that question, let me first react to the news that Mark Zuckerberg met with Joe that he revealed on Joe Rogan that basically during the election season, the FBI had come to Facebook and talked about the Hunter Biden laptop story.
00:07:20.840And as a result of that, Facebook agreed to censor that story using its algorithms to throttle it.
00:07:29.060I mean, that's just amazing at both ends.
00:07:31.400You know, if you think of it as a football pass, both, you know, the pass and then the reception of the pass.
00:07:37.080First, the FBI coming to a tech giant and saying you should censor is or should be unthinkable in America and a total violation of the First Amendment to say nothing of the election interference that it represents.
00:07:51.360But second, that the tech giant would hear that and then acquiesce in it and say, OK, as opposed to saying, you know, look, you're from the government.
00:07:59.860You can't tell us what to say or not say or what to use our platform for.
00:08:05.980And your larger question, Lou, had been, do I have any theories about why the memo was issued?
00:08:14.880I mean, as compared to the older policy, I think the older policy, just to start with that, is wrong.
00:08:21.000And the memo's right to have revoked that policy.
00:08:23.520It's the kind of thing that the deep state puts in place, right, that there's nothing that can be done about an election until afterwards.
00:08:31.480Then that really leaves them to work, you know, behind the scenes in a way that is not as publicly transparent to decide what election problems they're going to investigate and potentially try to penalize and which they're just going to leave off to the side.
00:08:46.260So, yeah, the policy, you know, the policy change, I think, is a good one.
00:08:52.240And the criticism of the policy change by the media, I think, was, you know, very wrongheaded.
00:08:57.200But the issue, you know, based on especially on what's come to light, is was that a formal policy that sat on a shelf or was it actually something that energized real action behind the scenes at the Justice Department?
00:09:09.140And I think the new evidence is showing that it was the latter.
00:09:13.500It was just something kind of sitting there, but not something actually really being used.
00:09:18.840And with that, that memo, the issue becomes what was the investigation?
00:09:27.140Because subsequently, Bill Barr announces that they found nothing of scale or merit that could have changed the outcome of the election, I believe was at least the intention of his remarks.
00:09:38.500But you found evidence that indicates that there was no basis for that statement on the part of the attorney general.
00:09:48.720So maybe just to cover them in chronological order.
00:09:52.060The first the first one happened in June of last year, the U.S. attorney in Philadelphia, which is the Eastern District of Pennsylvania, William McSwain.
00:10:01.820He wrote to President Trump, and he basically said that he had significant evidence of election fraud or irregularities, and he wanted to investigate.
00:10:12.680He wanted to have a press conference about it.
00:10:21.600And he also told him, turn over any evidence you do have to the Democrat AG in Pennsylvania and let him investigate it, which is interesting in light of what I'll describe as the second crack in the armor.
00:10:35.980But let me first pause there and say, look, McSwain really had proved his credentials in being an official who would energetically go after election fraud.
00:10:46.240In fact, that was, again, in the news this week with this congressman, Davis, Ozzie, Davis got convicted of election crimes and was sent to Ozzie Myers.
00:11:02.500I'm sorry, not Davis, who was convicted of election crimes, sentenced to 30 months in prison, $100,000 fine for, you know, violating civil rights, bribery, obstruction of justice, falsifying voting records, conspiring to illegally vote in a federal election, and then to orchestrate schemes to fraudulently stuff the ballots.
00:11:25.400And who was it who prosecuted and, you know, got across the finish line on that case?
00:11:32.660It was the same Bill McSwain who said, look, I got something on the 2020 election, too.
00:11:37.560This case with Myers actually involved 2014, 2015, 2016, 2017, and 2018 fraud, Lou.
00:11:46.260So when Bill McSwain comes to Barr and says, look, I got another big one, let me go forward, and he's denied the ability to do that, that's a major contradiction of the official story and that the November 9th memo was really being followed.
00:12:03.960That is extraordinary and would turn it over to the state attorney general.
00:12:09.740There were lots of questions at that point, I should remind everyone, about the, let's say, the electoral integrity of the great state of Pennsylvania, and also about both the executive and legislative branches of their state government.
00:12:26.320It was very unclear exactly what was transpiring and just how, let me say, motivated they were to correct wrongs and to prevent wrongs in the election of 2020.
00:13:02.040The governor, the secretary of the Gulf, and the partisan state Supreme Court made up their own rules and did not follow the law.
00:13:09.380And the fact, Lou, that those rules were being made up on the fly and they were different from the rules that were set by the legislature, which is the way our Constitution works,
00:13:18.200they're the ones who have the power to set those rules, you know, that's an issue that he wanted to investigate.
00:13:25.260And again, he was denied the ability to do that by Barr, despite what the November 9th memo had said to the world openly.
00:13:32.760And to press further with this, do we know what the evidence was that moved McSwain to send his message to the president and to seek to prosecute, which Bill Barr told him he could not?
00:13:51.640We do not really know well what that evidence is.
00:13:57.580Now, in the, you know, what I'll call the third crack in the armor, which, you know, I'll get to hopefully after the second crack,
00:14:06.140but in the third crack in the armor, which involves FOIA revelations, the one FOIA that has not yet been responded to
00:14:12.820is the one to the Eastern District of Pennsylvania where McSwain was the U.S. attorney.
00:14:18.120So, you know, it's possible that basically that FOIA is being worked over very carefully because it should reveal the information that McSwain was looking at in response to the November 9th memo from Barr.
00:14:32.480But, you know, it's obviously interesting that that one has been sequenced to go last.
00:14:37.740Sequenced to go last and unresponsive to this point, correct?
00:14:42.820Well, until it's actually responded to, right, when the sequence is finished, you won't know whether, how it responds to this point, right?
00:15:07.920So, okay, we, then I'll take, I'll call that the second crack in the armor then, even though it's more recent, which is that there is a individual who does a lot of FOIA work.
00:15:23.360He has a Twitter account calling himself FOIA fan.
00:15:25.740I find evidence that he has been issuing FOIAs since 2010 at the earliest, potentially, but he's been around for a long time.
00:15:38.260And he filed the FOIA to 12 DOJ components spread across seven states.
00:15:45.340And I think the theory was to focus it on the battleground states in the 2020 election.
00:15:49.440And he basically asked, okay, what did you do with the November 9th memo in practice?
00:15:54.920And he has gotten responses from 11 of the 12 components.
00:16:00.260And 11 of the components basically returned with the goose egg, you know, zero, nothing.
00:16:05.500And the only one that has not yet responded, as we've been talking about, is the Eastern District of Pennsylvania that was headed up at the time by Bill McSwain, who wrote to Barr about how he was told basically to shut down his investigation, or at the very least, turn it over to the state AG in the Commonwealth of Pennsylvania.
00:16:22.800And all of this points to no evidence whatsoever of any investigation in those districts.
00:16:31.800That is the takeaway from the responses from those districts.
00:16:38.040But what else are we to take away from the fact that the one instance where publicly we know that there was a U.S. attorney who wanted to investigate but was told no, how does that square up with Bill Barr saying that there was no evidence of any wrongdoing and his pledge to the president to go after any issue whatsoever and investigate it thoroughly?
00:17:08.040It seems to be highly contradictory, Lou, and so I see why you asked that question.
00:17:14.620It looks like this stands in stark contrast, right?
00:17:17.280There's a stark contrast between the memo directive and the plea that, you know, everything was investigated thoroughly versus the idea that these FOIA requests are coming up empty.
00:17:29.860One thing that the attorney general could do and one thing, you know, a good media could do would be to hold his feet to the fire to ask him, why is there that discrepancy and kind of force an answer?
00:17:40.560Another thing is that the current leadership of DOJ, they could release the investigative files from each of those areas if for some reason, you know, they withheld them or, you know, for some reason they thought there was material that, you know, did bear on investigating the election, but they somehow thought that the FOIA didn't call for it.
00:17:59.360It's a possibility, but I would think you'd want to see that dispelled, maybe the new Congress when they come in and especially the House, if that goes as is being predicted, you know, they could focus the light of oversight on those questions and get the Justice Department to really open up the files and show what was investigated, Lou.
00:18:18.580Jeffrey, I want to go to that issue of oversight and what we are hearing from members of the House Judiciary, in particular, the ranking member, Jim Jordan, about what they will do.
00:18:31.820But I also want to focus, if we may for a moment here, wouldn't there be a natural aversion to on the part of the current administration and in control of the Justice Department to withholding any evidence that would contradict Bill Barr?
00:18:54.920The last thing they want to do is to answer honestly the question, was the election of 2020 rigged?
00:19:02.940It seems to me that Bill Barr, either by accident or purpose or intent, has aligned himself with this administration.
00:19:10.780They are perfectly aligned in wanting to keep from the American public any evidence of wrongdoing, any evidence of any impropriety that will be embarrassing to the establishment, if you will, in the way in which the 2020 election was carried out.
00:19:32.140So, Lou, I think that would be their institutional incentive, but that's where, you know, you have to watch for the oversight to see whether it really has teeth to it or not.
00:19:44.560I mean, clearly, we've seen, you know, crocodile sharp teeth from the Democrats on the January 6th committee in terms of, you know, their purported exercise of oversight.
00:19:55.380I really think it's a witch hunt and it's an attempt to penalize opponents of their party, and surely they're going to say that in reverse if the Republicans take over the House.
00:20:08.200But, you know, there does need to be muscular oversight, and I think that the Republicans will conduct it with due process, right?
00:20:16.140They're not going to jury rig up committees that don't have Democrats on it, you know, deny to the minority the ability to pick, you know, the minority, you know, the ranking member, etc.
00:20:28.700They're not going to deny the ability of minority counsel to question witnesses and the like.
00:20:34.800They just, you know, I think they're going to want to get to the truth.
00:20:36.920But I think if they're stonewalled and the Justice Department says, we're not going to give that to you because it's investigative, and we've seen a lot, you know, oversight like that being conducted by, you know, minority questioning about, you know, people like Ray Epps and the like, where they just stonewall and say, like, you know, we can't talk about that, or we don't know what you're talking about, or sometimes now they've defaulted to, you know, there's no problem there.
00:21:01.920Why don't you leave the guy alone, you know, I think the Republicans are going to have to roll up their sleeves and be tough and push back to actually penetrate into the files.
00:21:11.180It, you know, seems similar to me, Lou, to the idea that there's kind of a constructive narrative.
00:21:16.640The constructive narrative is that the Justice Department in the 2020 election investigated incredibly thoroughly and found nothing, and then Barr threw up his hands, right?
00:21:26.020And then in terms of election lawsuits that were filed by President Trump's campaign, the official narrative is 60 lawsuits plus failed, ergo, there was nothing there.
00:21:36.900But the real stories are obviously more complicated.
00:21:39.500As we're exploring here about the Justice Department, there was a memo that said to the world things were being investigated thoroughly, but there's more evidence that it was not.
00:21:48.000And I do want to say something to you about the testimony of Heidi Sturrup, the White House liaison to the Justice Department.
00:21:55.600And then on the issue of the 60 lawsuits, most of those lawsuits, as you know, Lou, were dismissed, you know, for what lawyers call justiciability reasons, that there was no standing of the like.
00:22:05.560They weren't resolutions on the merits where the judges confronted all the evidence and said, no, this didn't happen, or no, the evidence is all bunkum.
00:22:13.400Basically, the lawsuits were thrown out at a threshold stage, and the merits were not plumbed into.
00:22:20.100So the official narrative, whether it's about the lawsuits or whether it's about the Justice Department's investigations, is really all wet at this point.
00:22:27.820Yeah, let's go into that a bit, because, as you say, those 60 lawsuits, in nearly every case, it was about standing, which is an alien concept to most of us who were laymen,
00:22:42.220who were not lawyers, and that may sound fine and satisfactory to lawyers, but to the rest of us, it sounds like pure nonsense.
00:22:53.580You have a conflict, whether it's the state of Texas versus Pennsylvania, which the U.S. Supreme Court wouldn't take up,
00:23:03.000but it looks on its face to be an important case that should have been resolved in a conflict that could only be resolved by the Supreme Court.
00:23:11.060And most of us know that the Supreme Court is where states go to resolve their conflicts,
00:23:15.280and we're all left scratching our heads, as we are about so much of what transpired in 2020.
00:23:21.960So let's go to that issue of standing, if you will, and give all of us who are not in the Spice Guild, who are not lawyers,
00:23:32.800some understanding of how you could, every one of these courts could just say, well, you don't have standing,
00:23:38.220and therefore we're not going to pay attention to the evidence, we're not going to deal with a conflict,
00:23:42.220and we're certainly going to be no part of resolution, if you don't mind.
00:23:46.680Sure, Lou. Well, first of all, I really applaud the Dune reference. That's one of my favorites.
00:23:53.900But let me meet that level of erudition, Lou, with a little bit on, you know, defending lawyers about standing,
00:24:02.800but then say, you know, why I think that really brings the spotlight back on the Justice Department.
00:24:08.400So, you know, standing is really an ancient concept,
00:24:11.200and the concept is, because our court system goes back to our English forebears, you know,
00:24:18.340that if something was not cognizable at the courts of Westminster, then it's not really something courts should be dealing with, right?
00:24:25.180Courts are not like many legislators, legislatures, or many presidents.
00:24:29.980They really only deal with individual cases or controversies that are brought to them.
00:24:34.300So if amorphous fights are brought to them, that's really something that the courts should stay out of.
00:24:39.460And having done a lot of environmental law, there's a lot of environmental law about this,
00:24:44.020because basically a lot of environmentalists are really just kind of officious intermeddlers who, you know,
00:29:28.980They're especially in an inflation-ridden economy.
00:29:31.560They're trying to make ends meet, right?
00:29:33.860They don't have time to probe into things like, you know, the courts at Westminster or how Article 3 standing works under federal law, right?
00:29:42.800They just are essentially given kind of quick talking points on TV.
00:29:46.980But more and more people are realizing they can't trust that alternative media and, I'm sorry, can't trust the mainstream media, and they're turning to alternative media in order to combat that.
00:29:58.200So I think those are two of the ingredients.
00:30:00.040And then, you know, I would say, you know, we're seeing the weaponization of investigative powers against political opponents of one party, and that really needs to be pushed back on.
00:30:12.600And one of the things that the Center for Renewing America has really been calling for and trying to spearhead is a new church committee for the 2020s that would investigate all the facets of the deep state, you know, intelligence apparatus,
00:30:28.860whether that's the FBI or the CIA or other aspects of the intelligence community, and try to put it back on a better track so we don't see things like Mar-a-Lago being raided.
00:30:40.480We don't see, you know, pro-life activists having, you know, more than a dozen agents show up when, you know, a knock at the door from one or two agents would have been enough.
00:30:50.560And, you know, so that, you know, we're not seeing parents, you know, being exposed to the national security apparatus simply for complaining about, you know, what the curriculum is in their schools or, you know, how they're opposed to transgender bathrooms,
00:31:07.460or they're worried that, you know, their sons or daughters are going to be attacked or somehow assaulted inside schools or, you know, any of the other manifestations of wokeism that we see, you know, that would be, you know,
00:31:22.860I think a select committee is what we've advocated so that it could declassify documents, it could expose what's going on inside these agencies and bring it to light because light, the sunlight's the best disinfectant loop.
00:31:36.180And I think it's a terrific direction in which to go.