US attorney in Pennsylvania investigating 'small number of mail-in ballots' found in trash

Darylann Elmi/iStockBy ALISA WIERSEMA, KENDALL KARSON and ALEXANDER MALLIN, ABC News

(WASHINGTON) — As mail-in voting begins in many states, and President Donald Trump continues to question its validity, one of battleground Pennsylvania’s three pivotal counties has been thrust into the national spotlight after a small number of mail-in ballots were found in a trash dumpster outside a board of elections office.

The U.S. Attorney’s Office of the Middle District of Pennsylvania and the FBI’s Scranton Office earlier this week said they “began an inquiry into reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections.”

“At this point we can confirm that a small number of military ballots were discarded. Investigators have recovered nine ballots at this time. Some of those ballots can be attributed to specific voters and some cannot,” the U.S. attorney’s office said in a statement.

The U.S. Attorney’s Office in the Middle District of Pennsylvania first announced in an initial press release that all nine ballots were cast for Trump, but later corrected that number to seven and said two were resealed inside the envelope. Pennsylvania utilizes “secrecy envelopes” that cover cast ballots in addition to the larger, mailing envelope.

“Of the nine ballots that were discarded and then recovered, 7 were cast for presidential candidate Donald Trump,” the updated release said. “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 situation was cited by White House press secretary Kayleigh McEnany before the U.S. attorney’s statement during Thursday’s White House press briefing when she was asked about the president’s criticism of mail-in voting.

“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 on that shortly,” she said. “Here In the last 24 hours, they were found cast aside.”

Former Department of Justice official Justin Levitt criticized the nature of the Justice Department statement, writing on Twitter, “An investigation here may be reasonable. But there is NO legit reason for a DOJ press release on a pending investigation, that announces a partial list of unconfirmed facts, including the identity of one of the candidates on specific ballots.”

Levitt, who served as the National Voter Protection Counsel in 2008, described the DOJ release to The Washington Post as a baldly political move to announce the probe with partial facts and to name Trump as the candidate who was voted for on the ballots.

“It’s wildly improper, and it’s truly unconscionable,” he told the paper.

ABC News has reached out to the Luzerne County Board of Elections regarding the incident.

In a letter provided to ABC News by the U.S. Attorney’s Office of the Middle District of Pennsylvania, U.S. attorney David Freed wrote to Luzerne County’s director of elections, Shelby Watchilla, that the office first began its review in conjunction with the FBI on Monday at the request of Luzerne County District Attorney Stefanie Salavantis.

Thus far, Freed wrote, the FBI has recovered a number of documents showing military ballots that had been “improperly opened” by elections staff and “had the ballots removed and discarded, or removed and placed separately from the envelope containing confidential voter information and attestation.”

Of the nine military general election ballots discovered that were discarded, seven were outside of their envelopes and had been cast for Trump. The other two were previously recovered by staff and reinserted into what appears to be their appropriate envelopes, which is why they are unable to determine which candidate the ballots were cast for. Three of the nine ballots the office said can be potentially attributed to specific voters, but the other six cannot at this time, Freed wrote.

Freed continued with some of the office’s findings, stating, “In addition to the military ballots and envelopes that were discarded and recovered as detailed above, investigators recovered four (4) apparently official, barcoded, absentee ballot envelopes that were empty. Two (2) of those envelopes had the completed attestations and signatures on the reverse side. One (1) envelope with a handwritten return address was blank on the reverse side. The fourth empty envelope contains basic location information and the words ‘affirmation enclosed’ on the reverse side.”

The documents were all found in a dumpster outside the elections office, Freed said.

“Opening a military or overseas ballot, or an absentee or mail-in ballot for that matter, violates the controlling statutes and is contrary to Pennsylvania Department of State guidance,” Freed wrote. “The preliminary findings of this inquiry are troubling and the Luzerne County Bureau of Elections must comply with all applicable state and federal election laws and guidance to ensure that all votes-regardless of party-are counted to ensure an accurate election count.”

Freed added in his letter that there is no guarantee any of the votes discarded in the dumpster will be counted in the general election: “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.”

In their initial interviews with staff at the office, Freed said they were told that “all or nearly all envelopes received in the elections office were opened as a matter of course.”

“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,” Freed 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 asked in the letter whether Watchilla would be available to meet with him and Salavantis to discuss the matter, but asked that Watchilla work to immediately correct the issues that his office has thus far identified.

A spokesperson for Freed’s office declined to comment further on the matter or elaborate on the timeline of when this issue was discussed with the main office at the Department of Justice or if they have been in direct contact with the White House. A DOJ spokesperson didn’t immediately respond to ABC News’ request for comment.

The investigation comes as the president continues to rail against mail voting on the trail.

“Democrats are trying to steal the election,” Matt Wolking, the deputy director of communications and rapid response with the Trump campaign, tweeted, without noting the small number of votes.

But there has also been criticism that a U.S. attorney’s office would release for whom the ballots were cast, a development that has caught the eye of election experts and former DOJ officials.

“This is an ongoing investigation where there is no public interest reason to override the usual policy of not commenting — and especially not to say for whom the ballots were cast. An unprecedented in kind contribution to the president’s campaign,” Matthew Miller, the former director of the Justice Department’s public affairs office, said on Twitter.

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