Dear Reader,

Back when I was a young federal prosecutor at SDNY, like all other Assistant United States Attorneys, I did a one-year tour in the narcotics unit. It’s where, among other things, you learn how to write warrants for wiretaps, flip witnesses, and conduct trials. Soon after 9/11, I had a heroin conspiracy case go to trial. It was a three-defendant case; we had a cooperator nicknamed “The Calzone”; and the evidence was quite strong.

The case had gone in well for us and the jury was engaged when the best of the three defense lawyers rose to deliver a rousing summation on behalf of his client. In addition to arguing the facts and law, the defense lawyer used a particular rhetorical flourish. “Mr. Bharara,” he said, “has presented to you the aura of evidence. Don’t be fooled by the aura. We don’t convict people on the aura of evidence.” Then he went on to try to poke holes in some of my arguments. It was polished and articulate, but the “aura” mantra was a mistake.

When I got up to deliver my rebuttal, I opened with a response trained on that catch-phrase. It was correct, I said, that you don’t convict on the “aura” of evidence, whatever that means. “But,” I said, “we don’t have the aura of evidence. We have evidence.” Then I walked back to the government’s table, picked up sealed packets of heroin and held them up for the jury. “See this? This is evidence. Evidence. It’s not the aura of evidence.” Then I picked up a videocassette played at trial, documenting two of the defendants talking about their heroin deal. “Remember this? This is evidence. It’s not the aura of evidence.” I did the same with other exhibits, including the transcripts of wiretaps. The jury convicted.

The defense lawyer was absolutely correct about the principle; it just didn’t apply in the case he was defending.

The sitting Attorney General of the United States could use a reminder of that principle – conclusions should be based on evidence, not the aura of it.

Consider the 30-minute interview Bill Barr did with CNN’s Wolf Blitzer on Wednesday. There is no issue on which Barr seems to be more evidence-free than voter fraud. This has enormous import for the election, now less than nine weeks away, especially given the false narrative the President is trying to implant about mail-in voting and widespread fraud. AG Barr, the chief law enforcement officer in America, is a reliable mouthpiece for Trump’s overwrought fraud fantasies.

Though we are in a pandemic and though five states reliably have all mail voting, Barr supports as reliable only the method of voting favored by Trump supporters and disparages the method Biden supporters want to rely on. He said sharply, “This is playing with fire. . . And people trying to change the rules to this methodology, which as a matter of logic is very open to fraud and coercion is reckless and dangerous, and the people are playing with fire.” Barr said the fire thing twice, for emphasis. Meanwhile, he is inflamed by the aura of evidence. In the face of tens and tens of millions of votes reliably cast by mail in many states over decades, he says simply widespread fraud is “a matter of logic.”

Then Blitzer asked Barr about another assertion he’s made.

BLITZER: You’ve said you were worried that a foreign country could send thousands of fake ballots, thousands of fake ballots to people that it might be impossible to detect. What are you basing that on?

BARR: I’m basing – as I’ve said repeatedly, I’m basing that on logic.

BLITZER: Pardon?

BARR: Logic.

BLITZER: But have you seen any evidence that a foreign country is trying to interfere in that way?

Barr had to concede he had not. No evidence, just the aura of it, dressed up in the guise of “logic.” Logic is important, common sense is too, but connected to evidence, connected to facts, connected to intelligence. None of that exists to support Barr’s blithe assertion. Given 2016, we should absolutely be concerned and vigilant about foreign interference, but again, based on evidence of particular and identifiable means. This language about fraud is irresponsible now, but after the election, it will be downright dangerous and inflammatory rhetoric to explain a Trump election loss. And it will be spoken out of the mouth of the Attorney General.

This focus on the supposed logic of voter fraud has backfired before, though it remains the holy grail of Republican voter suppression efforts. Remember the fanfare surrounding the creation of a White House commission on voter fraud? The New York Times described its mission: “Mr. Trump established the commission after his repeated insistence, without credible evidence, that widespread voter fraud explained how Hillary Clinton received about 2.9 million more votes while he won the presidency in the Electoral College.”

The commission was abruptly shut down in early 2018 after finding no such evidence. And yet the President and his allies still revel in the aura of commonplace voter fraud.

By the way, Blitzer asked Barr a simple factual question about voter fraud during the interview.

BLITZER: During your tenure as Attorney General of the United States, how many indictments have you brought against people committing voter fraud?

BARR: I couldn’t tell you off the top of my head, but several I know of.

BLITZER: Like a handful?

BARR: I can’t – I don’t know.

For someone who mouths off confidently about the perils of voter fraud generally, and the threat of foreign ballot fraud specifically, you would think he would know this one concrete fact. Or maybe he did know but didn’t want to say, because it would undermine the aura of fraud he and the President are so desperate to amplify.

My best,

Preet

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The Red Mirage
By Sam Ozer-Staton

On Tuesday, a top Democratic data and analytics firm warned of an increasingly likely election night scenario: a massive lead for President Trump with millions of absentee ballots yet to be counted. A predictive map released by Hawkfish LLC, a Michael Bloomberg-funded firm, reflects an emerging consensus among election experts that the partisan divide over absentee voting will lead to what is being called a “red mirage.”

Hawkfish’s model, which is based in part on polling that FiveThirtyEight conducted in August, shows Biden ultimately winning a commanding electoral college and popular vote victory — once absentee ballots are counted. According to the firm’s CEO, Josh Mendelsohn, “When every legitimate vote is tallied and we get to that final day, which will be some day after Election Day, it will in fact show that what happened on election night was exactly that, a mirage.”

Yet Trump’s lead on election night could be much more significant than Democrats previously envisioned. Under one of Hawkfish’s modeling scenarios, Trump holds a projected lead of 408-130 electoral votes on election night with only 15% of absentee ballots counted. According to that particular model, not until 75% of absentee ballots are counted, possibly four days later, could the lead flip to Biden.

Democrats have made mail-in voting a pillar of their pandemic response, fighting to include additional funding in congressional COVID-19 relief packages and advocating for states to send out no-excuse absentee ballots to all registered voters. Meanwhile, President Trump has repeatedly attacked the security of mail-in voting. In one of his many tweets on the subject, Trump said in July, “Mail-In Voting, unless changed by the courts, will lead to the most CORRUPT ELECTION in our Nation’s History! #RIGGEDELECTION.”

Those stark differences among party leaders have trickled down to the electorate. A recent Marquette Law School poll of Wisconsin, a crucial battleground state that President Trump carried by less than 1% in 2016, showed Biden holds a 67% lead among absentee voters, while Trump holds a 41% lead among voters planning to vote in-person on Election Day.

That has Democrats fearing a circumstance in which President Trump attempts to cast doubt on the legitimacy of millions of absentee ballots, a tactic he employed in the days following the 2018 midterm election in Florida. That year, the Republican candidates for governor and Senator, Ron DeSantis and Rick Scott, emerged from election night with narrow leads over their Democratic opponents. As absentee ballots were tallied — and the margins grew slimmer — President Trump falsely claimed on Twitter, “large numbers of absentee ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible — ballots massively infected. Must go with Election Night!”

Trump previewed this line of attack again in July of this year, tweeting, “Must know Election results on the night of the Election, not days, months, or even years later!”

Democratic lawyers are actively engaged in litigation in battleground states, fighting to extend absentee ballot deadlines and ease signature and witness requirements. And they are preparing for the possibility of Trump declaring victory on election night with millions of absentee ballots yet to be counted. Should that happen, Democrats’ biggest uphill battle may not be legal but political — convincing millions of Trump voters of the legitimacy of a Democratic comeback.

How concerned are you about an election night “red mirage”? Is this possibility impacting your decision about whether to vote in person or by absentee ballot?

Write to us at [email protected] with your thoughts or reply to this email.

FOLLOW

“Typos of the New York Times” is a Twitter account run by a self-described “appellate lawyer and persnickety dude.” This “persnickety dude” is remarkably gifted at finding typos in the country’s Newspaper of Record. Follow them @nyttypos.

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*To listen to Insider content on your favorite podcast app, follow these instructions*

— Listen to this week’s episode of Stay Tuned, “Becoming a Warrior.” Preet is joined by Katie Hill, the former Congresswoman from California who resigned last year after a conservative website published non-consensual nude photos of her and text messages between her and a former campaign staffer.

—  Listen to this week’s episode of CAFE Insider, “Web of Ways,” where Preet and Anne break down the latest updates in the police shooting of Jacob Blake, new developments in the Michael Flynn saga, Trump administration officials’ potential violations of the Hatch Act, and the case against Kyle Rittenhouse, who faces murder charges for fatally shooting two people during protests in Kenosha, Wisconsin.

— And be on the lookout for Friday’s episode of United Security, where Lisa Monaco and Ken Wainstein discuss the DNI canceling in-person congressional briefings on election security, the threat of domestic terrorism, and the poisoning of Aleksei Navalny, Russian opposition leader and critic of Vladimir Putin


That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Adam Waller, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, David Tatasciore, Matthew Billy, and Nat Weiner