President Donald Trump has put himself in a vexing position with his promise of a “major” voter fraud investigation, with little chance of proving his unsubstantiated claim that millions voted illegally in November and a high probability the effort will be panned as a fruitless political exercise.

If Trump tries to kick-start an aggressive criminal investigation, he is sure to fuel charges he is politicizing the Justice Department. If instead he chooses a more modest, blue ribbon panel-style inquiry, Trump is likely to have trouble attracting prominent Democrats who could give the effort more legitimacy.


Former Justice Department officials warned Wednesday that conducting a presidentially directed, wide-scale probe into election fraud would put top lawyers there in the uncomfortable position of having to pass judgment on a claim repeatedly leveled by Trump, but lacking in evidence: that 3 million to 5 million people voted illegally in the election that delivered him to the White House.

“If you do launch an investigation like this, prosecutors would be under enormous pressure not to find that the president was wrong. What if the report is inconclusive?” said Matthew Miller, a Justice Department spokesman under Attorney General Eric Holder. “Voter fraud is a crime, and DOJ usually begins investigations when they find evidence a crime was committed, not because the president has endorsed a conspiracy theory for which there is no evidence. Now, we’re in a position where DOJ has to launch an investigation into a supposed crime just because the president is making up facts?”

Such an effort would also conjure up memories of an anti-voter-fraud drive launched under President George W. Bush a decade ago. That initiative — and the firing of some U.S. attorneys who were reluctant to go along with it — led to a major political imbroglio that prompted the resignation of Attorney General Alberto Gonzales.

“The push on voter fraud ... became a more broadly politicized effort that led to a massive scandal and ultimately the resignation of the attorney general of the United States,” said Wendy Weiser, an attorney with the liberal Brennan Center. “I am worried that raising these issues create a risk of politicizing the Department of Justice along the lines of the Bush administration, but I’m worried this could get even worse.”

Perhaps due to those sensitivities, White House press secretary Sean Spicer suggested Wednesday that Trump is more likely to pursue a commission that would examine the sources and scope of potential fraud rather than trying to find cases to prosecute. Spicer described the planned inquiry not as an investigation, but a more genteel-sounding “study.”

“Part of the reason we need to do a study is ... there’s a lot of people that are dead that are on rolls, that are voting in two places or that are on the rolls in two different states, sometimes in three different states,” Spicer said at his daily briefing for reporters. “I think taking the necessary steps to study and track what we can do to both understand the scope of the problem and, second, how to stop the problem going forward is definitely something that's in the best interests.”

“The first step is for him to get this — I don’t want to call it a task force because it’s not there yet, but this effort underway that can look at the scope of the problem and then make some recommendations,” Spicer added, promising there will be “more on that as the week goes on and we’ll be able to examine that further.”

Trump revived the voter fraud issue at a meeting with congressional leaders Monday by claiming he would have won the popular vote except for 3 million to 5 million people who he asserts voted illegally. On Tuesday, Spicer was noncommittal about any investigation into the fraud, but Trump took to Twitter early Wednesday to call for a thorough inquiry.

“I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and ... even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!” Trump declared.

Even a high-profile commission would be something of a high-wire act, since Democrats will insist that controversial voter ID laws also be part of any such review if they take part.

When Obama appointed a bipartisan panel to address voting-related issues after the 2012 election, the group — headed by former Obama White House counsel Bob Bauer and longtime Republican National Committee attorney Ben Ginsberg — focused on long lines at polling places and voting machine problems, while shying away from issues like voter ID in order to try to maintain consensus.

"These are the kinds of radioactive issues which the presidential commission avoided," said University of California at Irvine law professor Rick Hasen.

Democratic lawmakers on Wednesday already expressed deep doubt about Trump’s motivations, suggesting it would be difficult to make such a panel truly bipartisan and that such an inquiry could be a sham intended to ramp up GOP calls for stricter voter ID laws, which Democrats say disproportionately disenfranchise minority voters.

House Minority Leader Nancy Pelosi of California called Trump’s claims and his proposal for an investigation “really strange.” Sen. Dianne Feinstein (D-Calif.) called Trump’s assertions “absolute nonsense” and “shameful."

“The president can join me and my staff, and we will show him that there is no voter fraud,” said. Rep. Elijah Cummings (D-Md.), ranking member of the House Committee on Oversight and Government Reform.

However, Cummings seemed to open the door to some inquiry that would look at the impact of voter ID laws. “The thing I want him to do, I want him to investigate, are all of the people who don’t get the chance to vote, who have been denied the right to vote,” Cummings said.

One prominent Trump supporter said Wednesday that a broad review of the issue and criminal investigations could be conducted simultaneously.

“I know that [Trump] is interested in investigating the issue on a national scale, but I also know that he would like to see the Justice Department launch specific investigations where there is real serious, specific evidence of voter fraud,” Kansas Secretary of State Kris Kobach told the Wichita Eagle.

Conservative activists who favor aggressive efforts to police the voting rolls also hailed Trump’s announcement.

“President Trump’s decision to renew the federal government’s interest in enforcing laws against election fraud and the procedures that work to prevent such activities is important,” J. Christian Adams of the Public Interest Law Foundation said. “The Obama administration had the tools to fight voter fraud but let them gather dust. Because of that neglect of their duties, aliens got on the rolls, people voted multiple times and lawlessness took hold of our elections.”

While it is uncommon for White House officials to press for investigations of specific crimes, political appointees can and do set enforcement priorities.

In 2002, Attorney General John Ashcroft set up a Voting Access and Integrity Initiative that coordinated election-fraud investigations. In 2005, Attorney General Alberto Gonzales declared such cases a “high priority” and authorized prosecutions of individuals not known to be part of any broader conspiracy.

About 120 people were prosecuted and 86 convicted in federal court of election fraud between 2002 and 2007, according to a tally compiled by The New York Times.

The issue became a political hot potato after the firing of nine U.S. attorneys in 2006. The administration asserted the prosecutors were let go for performance reasons, but a Justice Department inspector general review found that explanation to be inaccurate and at least three were terminated in part because they refused to pursue election-fraud related cases being pushed from Justice Department headquarters in Washington.

It also emerged during the controversy that Bush relayed concerns to Gonzales about voter fraud in Albuquerque, Philadelphia and Milwaukee, and that Bush political adviser Karl Rove emphasized those concerns to Gonzales shortly before the main wave of U.S. attorney firings. The IG report concluded that the firings and misleading public explanations of them “severely damaged the credibility of the Department and raise doubts about the integrity of Department prosecutive decisions.”

One open question is whether Trump’s nominee for attorney general, Sen. Jeff Sessions (R-Ala.), would oversee any drive to investigate and prosecute fraud related to the 2016 election. Sessions has said that because of his public statements as a vocal supporter of Trump, he would recuse himself from any inquiries related to Hillary Clinton’s private email system. However, Sessions has said he does not see a basis to recuse from other matters, like reported investigations into ties between some Trump campaign advisers and Russia.

Miller said he did not see how Sessions could oversee a 2016 election-fraud probe. “You can’t investigate a political campaign you were a member of,” the ex-Justice aide and former Democratic spokesman said.

A Sessions spokeswoman had no comment for this story.

Some election law experts said there is a possibility a commission-style inquiry could produce some useful conclusions about voter fraud and the impact of voter ID laws, but the effort would be fraught with risk of beiong derailed by partisan concerns.

“I have real skepticism this can be done in this environment at this time,” Weiser said. “I think people will be reticent to participate in that.”

