Updated at 8:10 p.m. ET
The FBI and the U.S. attorney for the Middle District of Pennsylvania said Thursday that they are investigating "potential issues" with nine military ballots in one county. They believe the ballots were opened improperly — though they have not yet filed any charges or taken official action.
U.S. Attorney David Freed noted the investigation remains active, but said he is releasing the news publicly "based on the limited amount of time before the general election and the vital public importance of these issues."
Voting rights experts and Justice Department veterans, however, said that proximity to the election and the preliminary nature of the investigation make Freed's announcement highly unusual.
The potential voting irregularities in Pennsylvania came to light after President Trump mentioned them, offhand, in an interview with a Fox radio host Thursday.
"We have to be very careful with the ballots," the president told reporters later, according to a news pool report. He described what he called a "scam" where ballots had been found in the trash. The president has been criticizing the integrity of this year's election for months.
"We want to make sure the election is honest, and I'm not sure that it can be," Trump continued.
Discovery by local officials
Officials said Luzerne County Elections Director Shelby Watchilla discovered the ballots last week and the matter was immediately reported to authorities.
Luzerne County District Attorney Stefanie Salavantis then asked U.S. Attorney David J. Freed to investigate, according to the Justice Department's statement. That led to the involvement of the FBI.
Salavantis leads a working group on the Presidential Commission on Law Enforcement and the Administration of Justice, which is spearheaded by Attorney General William Barr.
According to a letter from U.S. Attorney Freed to the county elections director, the inquiry into Luzerne County's ballot handling began Monday, and found that nine military ballots had been "improperly opened" by elections staff and "discarded."
He wrote that "the majority" of the recovered ballots and envelopes were found in an outside dumpster — seven of the nine ballots outside their official envelopes, and two that elections staff had apparently recovered and sealed back in their envelopes. He said investigators also found four "apparently official" absentee ballot envelopes that were empty.
All the ballots found outside of envelopes were cast for Trump, Freed's letter said; it's unknown who two sealed ones are for.
Pennsylvania law dictates all mail ballots — military or otherwise — be securely stored until processing can begin. In the commonwealth, that's not until 7:00 a.m. on Election Day.
Based on interviews, however, Freed said investigators had concluded that all the envelopes — likely a very small number — that had been received by the Luzerne County Board of Elections were opened "as a matter of course."
Workers, he wrote, explained that the envelopes used for mail ballot requests were so similar to the ones used for returned mail ballots that they believed they would miss requests if they preserved all the envelopes unopened.
"Even though your staff has made some attempts to reconstitute certain of the improperly opened ballots, there is no guarantee that any of these votes will be counted in the general election," he said.
Highly unusual situation
Voting rights experts and Justice Department veterans immediately reacted to Freed's unusual press statement.
Justin Levitt, a law professor at Loyola Law School in Los Angeles, said the timing of the announcement alone raises many questions.
"It is the vital duty of government not to announce partial facts and 'potential issues' in pending investigations," Levitt said in an email interview. "Indeed, it's quite improper to announce the fact of an inquiry. And grotesquely improper to announce whom the ballots were cast for, as if that mattered in the investigation."
On the other hand, Levitt said, it would not be improper to investigate if local officials were refusing to set aside and count valid ballots. But it's not clear that's what happened, he added.
Levitt said the Trump Justice Department had issued guidance in 2017 requiring that "any criminal investigation by the department must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election."
Matt Wolking, who handles rapid-response communications for the Trump campaign, highlighted the probe and concluded, "Democrats are trying to steal the election."
The Pennsylvania county where authorities said they are investigating the ballots supported Trump in the 2016 election.
Matthew Miller, a former press spokesman for President Barack Obama's Justice Department, said in a tweet that the U.S. attorney's news release amounted to an "in kind contribution" to the Trump reelection campaign since it amplified the president's allegations about the dangers of mail-in voting during the coronavirus pandemic.
David Thornburgh, who heads the nonpartisan election watchdog group Committee of Seventy, told reporter Katie Meyer of NPR member station WHYY in Philadelphia that Freed's release left him a bit nonplussed.
Because the U.S. attorney's office offered so few details about the situation in Luzerne County, Thornburgh said he's concerned voters might conclude the situation is much worse than it actually is and wrongly conclude there could be wider problems, based on an anecdotal example.
"You have to be on the lookout for breakdowns in the system, but we have to be careful not to extrapolate from single-digit incidents to more systemic problems," he said.
Katie Meyer is a political reporter for WHYY in Philadelphia.
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