Bob Bauer and Jack Goldsmith discuss Bob’s recent piece, “Why the Trump Election Interference Strategy Failed.” Bob describes three factors: flawed strategy resting on a “constitutionally doomed” theory of executive power over federal elections and on tenuous noncitizen-voting claims; the courts, which repeatedly ruled against the administration, capped by the Supreme Court’s same-day denial in the California ballot-segregation case; and a decentralized election system whose officials, in red and blue states alike, carried out their work as in any other election. Bauer and Goldsmith also chat about the solicitor general’s final emergency application, and how the president’s political weakness and the polls’ forecast of decisive Democratic win decreased the viability of election denialism.
Mentioned:
Bob Bauer, “Why the Trump Election Interference Strategy Failed,” Executive Functions (November 5, 2026)
United States v. California, No. 26A624: Application for an Injunction Pending Appeal and order denying the application (U.S. November 2, 2026)
Jack Goldsmith and Bob Bauer, “Donald Trump Might Challenge Election Results in 2026, Say Two Leading Lawyers,” The Economist (November 12, 2025)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Good morning, Bob.
Bob Bauer: Good morning, Jack.
The Trump administration’s rhetoric and actions throughout 2026 suggested to a lot of people, including you and me, that it intended to use presidential power to tilt the election in ways that would favor Trump and his party, yet that didn’t happen on Tuesday. Yesterday, you wrote a piece on Executive Functions entitled “Why the Trump Election Interference Strategy Failed.” So why did it fail?
It failed for a number of reasons. I identify three in particular. The first is the flawed premise and very poor execution of Trump’s strategy for tilting the election in the favor of the Republican Party. The second has to do with the role of the courts, and the third has to do with the way the system fundamentally operates, and it operates in a way that was not compatible with what Trump wanted to do.
And for that reason, we saw—and there are some other reasons we can discuss—we saw a very normal election day. There were glitches. There always are glitches. It’s an imperfect system. Human error always plays a part. Sometimes technology failure aided and abetted by human error plays a part. But it was an election day, and a period of early voting before it, like any other.
Okay, so let’s march through them. The first reason had to do with just the failed strategy, the strategy itself.
Yes. It rested, first of all, on an attempt on the administration’s part to assert a constitutionally flawed, constitutionally doomed theory of executive power to set rules in federal elections. The Constitution confers that rulemaking authority on the states unless Congress chooses to intervene and prescribe specific rules for federal elections.
Trump had wanted, by executive order and in litigation, to claim authority for the presidency that the Constitution does not provide, and he met with real reversal in the courts, consistent reversal in the courts. So that was the first problem. And we could talk a little bit more about the different approaches over time that the administration experimented with to try to get around that problem.
The second problem was a complete loss of credibility, primarily on claims that accelerated toward the end of the election cycle about the prevalence of noncitizen voting and the measures—therefore, emergency measures—the administration needed the states to adopt to prevent it. The administration was continuously making factual claims that were false, and in the end, had to admit that some of the key claims, particularly in the state of California, also in the state of Nevada, in other states, were just wrong. We’ve never had—and this subject has been studied up and down—we have never had massive illegal noncitizen voting in the United States.
From time to time, noncitizens do wind up on the voter registration rolls for various reasons. Many of those don’t vote at all. A handful of cases, the administration did bring some prosecutions against noncitizens for voting. They are small in number and very often misunderstandings on the part of those who are voting that they are in fact not eligible to vote. So the whole premise, going all the way back to Trump claiming that the Clinton plurality victory in 2016 was accounted for by millions of noncitizens voting, was false and exposed to be false, and it seriously damaged the administration’s credibility with the courts—I think also with the public.
(3:15) Okay, so let me follow up on a couple of those things. Yes, you’re absolutely right that the president does not have a role in these elections by the Constitution—that’s given to Congress and to the states—but there are lots of laws related to elections, election enforcement, election monitoring, and the like. There are criminal laws. The worries were that the president would use his power over law enforcement to somehow disrupt or intervene in the elections, and then there were other worries that the president would use his power over the military in various ways. There was very little of the first and none of the second. Do we have an explanation for why that happened?
In the first case, I think that what transpired—and this is, again, a flaw of execution—the administration tried to push this law enforcement theory so hard that it was clear that it was a proxy for an unconstitutional claim of executive authority to make rules in federal elections, and that’s what happened in California toward the end of the election, in a theory that it also, by the way, tried to move to other states. The administration took the position that because of its law enforcement authority, because of its concern with noncitizens voting and its determination to enforce the federal statute against it, the states were required to screen for voter eligibility not as their state laws provided, but as the Department of Justice dictated, and that’s at bottom an unconstitutional position.
It is doomed to fail, but the administration tried to wrap it up in a law enforcement theory. Here is the fundamental problem. If under federal law there is noncitizen voting, the administration obviously retains the authority to prosecute individual cases, but it doesn’t have the authority to decide that states that have by law adopted procedures for screening for that kind of voting, those states are required to adopt an alternative federal procedure for basic screening. That just simply isn’t correct. The translation from the law enforcement to the unconstitutional rulemaking authority claim was destined to fail.
And how about the military?
There will be a day, I think, through oral accounts that are elicited and documents that become public, where we might find out a little bit more about whether the administration ever thought seriously about invoking the Insurrection Act. There was also talk—and I don’t think it’s unrelated—about potential administration plans to seize ballots or voting machines in particular jurisdictions, to sow chaos, create doubt about the elections, potentially alter the outcome of the elections in those jurisdictions. It didn’t do that.
And we can speculate about the reasons why. It may well be that there was significant resistance within the president’s own party as the polls showed increasingly dramatically negative results for the Republicans, that they did not think that this would do anything but make matters worse. After all, Republican politicians were also on the ballot. They were also looking to try to win the election. Having the president engage in an act of subversion against the background of polls showing that the Republican Party was about to lose was not likely to be something Republican politicians welcomed. I think it would hurt many more than it would have helped.
And there was also likely some public opinion polling—the White House does a lot of polling—that would have indicated that it would have been wildly unpopular. It would have turned the electorate even more against Trump, because that goes to the point of whether it would have undermined Republican prospects on the ballots, where they did have those prospects. And for those reasons, as in 2020, he chose not to pull that trigger, if you will.
(6:45) Okay, the second reason you gave was the courts. The courts were so vital here. And how did that work?
Speaking first of the lower courts, I mean, the lower courts were very rough on the administration’s claims, and I think rightly so, because the law was not on the administration’s side. A good example was the administration’s attempt to coerce the states into surrendering their unredacted voter rolls, as the administration sought to build its own list and use that to screen for ineligible voters around the states—once again, supplanting state processes for doing so. And the administration, when it met with resistance, filed suit to force the recalcitrant states to comply.
And it lost—26 at last count, and I think this is the last count—26 consecutive lawsuits on this issue. It’s extraordinary. They were 0 for 26, and at least one appellate review. The lower courts just wouldn’t have any part of this, and I can cite some other examples.
But let’s talk about the Supreme Court for a second. The Supreme Court, of course, doesn’t sit well with progressives on a whole range of issues in the sphere of the regulation of politics—how much authority Congress has to control campaign finance, how much of a role the courts will play on gerrymandering. But I think that it’s important to see—and I think it was on display in this election—the court treats election administration and has responded to election administration issues quite differently, and not in a way that the administration would have wanted. We can go back to 2020, where there was a lot of concern about whether the courts would help Trump with his challenge to that election, and it certainly did not. And in this cycle, it also didn’t.
And we can run through the number of instances where the [court] could have, if you will, lent him a hand, and it wouldn’t do so. And at the very end in particular, in the case that he brought against California over noncitizen voting, it filed an emergency application with the court for relief because it had lost in the lower courts below, and the Supreme Court, with no noted dissents, within the same day, without requesting briefing from other parties, turned the administration away. And boy, that was a strong message, and I think a really significant moment in the judging of the court’s performance on these issues in this cycle.
I agree with you. I think it was seven hours after they received the application, they rejected it without comment and without noted dissent. You noted in your piece, and this was also quite remarkable, and a bit of evidence that what you just described in how the lower courts acted is remarkable evidence of how efficacious law was in this context. But even, I would say, norms were doing work. I don’t know what you want to call it, but you noted that the solicitor general in the application in the California case that the court flipped away in just a few hours kind of distanced itself from false claims that were being made in the Ninth Circuit. So even there—that relationship between the SG and the court—I think that paragraph signaled that the SG wasn’t really on board for this either and may have been behind the court’s very quick dismissal of the application. What do you think?
I agree it was remarkable. The SG clearly distanced itself—distanced himself—from these already shown to be baseless factual claims. And on the norms, I suppose you could say that was a very good moment in an otherwise not very good record on the part of the Department of Justice.
I mean, the Department of Justice—though we do not know what presidential pressures it may have resisted; who knows what other extreme steps the president proposed and that the department declined to follow—nonetheless, the department took positions in this election, clear-cut interventions that were not lawful and that were clearly going to be rejected by the court and that did have the effect of signaling to the public that the administration might try something dramatic, certainly could undermine confidence in the executive’s willingness to live with the results and follow the law. So the Department of Justice’s record is poor. The solicitor general’s moment here, I certainly think, does deserve note, as you point out.
But let me just say more broadly, the solicitor general’s office has been very much on board for pushing the presidential agenda in the courts. But its rhetoric has always, and its posture has always from the beginning, been different from the posture the department has offered in the lower courts. And there are many examples of this. Even as the department was defying court orders in the lower courts, the SG was representing respectful court orders in the Supreme Court. And what I meant by norms is that there is a relationship between the solicitor general’s office and the court in which the SG has to maintain a modicum of credibility with the court. The court depends on the SG’s office. The SG needs the court. And that relationship is something that kind of cuts against what the president’s trying to accomplish. This isn’t the first time that’s happened.
I’m not suggesting, of course, that the SG hasn’t been extraordinarily aggressive in pushing presidential prerogatives. I’m just saying this is the latest instance of that relationship between the SG and the Supreme Court mattering and contrary to the interests of the White House.
I certainly agree with that. But I will say this. By the time the SG did this act of distancing in the California case just a couple of days before the election, the administration’s factual position on these noncitizen voting and other claims about the electoral process had completely collapsed. So there really wasn’t a whole lot of room for the solicitor general to come too close to embracing the administration on those issues. But better—better, certainly—that it was an active and clear distancing than if it had not been.
(12:13) Yep. And as we say, I do think it must have been part of the explanation for the court’s very quick denial of the application. So let’s go to the third reason. What was that?
The system: the way the system operates. We have a highly decentralized election administration in the United States. People disagree on the count, but there are somewhere between 8,000 and 10,000, maybe slightly more, individual voting jurisdictions. And as mentioned before, the states—unless the Congress intervenes to make rules for federal elections in particular—the states do have authority to set the rules for elections, which is why you have a variety of different regimes across the country with different periods of early voting and some cases same-day voter registration and other states not. And in the Republican Party in particular—I just want to stress, in the Republican Party in particular—there is a strong commitment to that federalized structure, that decentralized structure, rather.
And I certainly found—and I do travel around the country, did in this election cycle, talking to community leaders and also election officials who would meet with them to explain the preparation for the elections—that there was simply no appetite for the kind of role in federal elections that this administration was asserting aggressively. It just runs against the grain, maybe not of the MAGA denialist movement, but it runs against the grain of Republican beliefs about how this system ought to operate. There is that.
And then one more point that I would add to it, which is we do have—and increasingly since the presidential recount in 2000 in Florida, and the controversy over that and the concerns about the electoral process that followed, there has been a steady advance in the professional administration of elections in which voters actually have a significant amount of confidence. There was a poll recently that some two-thirds of the voters, notwithstanding all of the attacks on the system in recent years, do have confidence in elections. And by the way, that confidence has been dented. It’s been damaged by Trump’s war on the electoral process, his rhetorical war, maybe his legal war on the electoral process in recent years, but it’s held up remarkably well. And voters in the jurisdictions in which they cast their votes often know their election officials, have been voting the same way in the same location for years, and they have confidence in the system. And that system just kept operating.
Even with threats that were directed against election officials by the administration, the election officials—Democrats and Republicans in blue and red states—kept their heads down and just did the job they had to do.
And I’ll just add one more thing, and this is a point that was made after the successful elections, even under pandemic conditions in 2020. These officials operate with very limited resources. It’s actually scandalous how little money is allocated to support them in staffing and replacing technology and in other aspects of administration. And the job that they do with the resources they have is really quite extraordinary. And just think about this last election now, the one that’s just completed: 124 million people voted. There were glitches, but there was no reports of widespread breakdown or voter complaints that they were unable to receive and cast their ballots. There were glitches, but overall it ran really well. And that’s a tribute to the professionalized election administration that we see in the United States.
(15:21) So let me ask you about that. I agree, it’s just remarkable. I just want you to say more about why the system was able to hold, because, as you say, the Trump administration has—not just this term, but for a very long time—been threatening and trying to infiltrate and take control of, or at least influence, local election officials, especially on the Republican side, to kind of break through these norms you’re talking about or this culture that you’re talking about. So can you talk more—is there more to say about what that culture is, where it comes from, and why it was able to resist these pressures from the top, so to speak?
Well, and I’m not sure I’m going to capture it fully, but I would just point to two things. One is—sort of embedded in the political culture is a belief that voters are entitled to participate in these elections—eligible voters are—and they should be able to receive their ballots in timely fashion, mark them, return them, and have them fairly counted. And if there are disputes about the election, there are processes under law like recounts and contests—ultimately the role of the courts, of course, they are significant—but that we have an electoral process and it merits respect and it’s a cornerstone of democratic life in the United States. So I think that’s a political cultural commitment that crosses parties. And again, I know that there are extremes that view every outcome as the only significant measure of whether the system worked, but I don’t think that’s generally the case.
Secondly, I think election officials around the country understood that, on a bipartisan basis, leaders—whether elected leaders or community leaders—had their backs, that they were going to be defended, they were going to be protected, they could go ahead doing their work and keeping an eye on those threats, to be sure, nonetheless proceeding [with] confidence that they could get their job done and they would not be interfered with.
And I’ll give one example that I thought was quite striking. The administration sent roughly—I think it was—a thousand DOJ monitors around the country, performing an observation role that it does perform, but it’s an observation role. It’s not an intervention role. And in Wyoming, in the primary, a DOJ observer wound up just going beyond the boundaries of the job and looking to interview voters and inspect machinery. And the governor of Wyoming—a very red state, a Republican governor—complained bitterly to DOJ that this observer or these observers were transgressing against state responsibility here—state lawful constitutional responsibility for these elections—that it was an improper federal government interference. And I think that really does tell you something about the political culture and the reasons why election officials had confidence that, however threatening the environment was, they could do their jobs.
(17:56) So the last thing I’ll say is it just seems to me against the baseline of expectations going back over a year—you and I wrote a piece in The Economist a year ago in which we worried about all of the things that Trump was clearly planning to do and trying to do and scheming to do and might do. And those fears and worries persisted in many corners throughout 2026. And against that background, and the larger background of the Trump administration so obviously, in so many contexts, defying law, defying norms—against that background, what happened on Tuesday seems to me to be just an extraordinary vindication of what you call the political culture, law, courts, and basically the law and norms around the democratic process. Is that too enthusiastic?
No, I don’t think in this context it’s too enthusiastic. I just would note this. If it had been a very close election, then we would have had some ugly conflicts. And then who knows what the executive would have done. If control of the House or the Senate had been at stake, then, you know, we might be having a different conversation.
I do think, by the way, not only did the margin help enormously to put all that to the side and to make that not likely to happen, but the prophecy through polling that the election would in fact swing to the Democrats, and decisively so, really created an environment in which I think the administration was going to be hard-pressed to make the case that it was preparing for the Democrats to achieve the election, because it was a widespread expectation that the Democrats would—and obviously many voters thought should—win the election. And I think that conditioned the environment in a way that made any election denialist propaganda on the part of the administration very difficult to pull off.
Yeah, I think that’s an important point, because obviously the size of the vote—you’re absolutely right—matters to what shenanigans they might have pulled after the elections. The question for me is why they weren’t more aggressive in doing the things they had threatened to do before the election. And who knows what combination of things it might have been. We discussed many of them, but you’re adding the fact that the polls were cutting so much in favor of the Democrats that that too may have dampened the enthusiasm to intervene.
Yeah, and I think it connects—I should mention, I think it connects—to the overall perception and the reality of the president’s political weakness. A president ranting and raving about how the election is going to be stolen from him or claiming on election night it was going to be stolen from him would be speaking to a very, very slim audience. He was weak.
There was already a lot of backlash against the self-interested topics of conversation that he chose to address in the final days of the election—conversation about how important it was that he removed algae from the Reflecting Pool, the ballroom, the renovations of Washington. And this perception—and I think it also, by the way, plays into the reason why corruption soared to the top of the polls—this perception of self-interestedness, I think, also sweeps in what voters have been hearing from him continuously since 2020, which is he was denied that election and Democrats always cheat. And by the time this election came around, I think they’d heard enough about that, and they thought of it as just another example of his thinking about things they didn’t buy, they didn’t think was most important, and that on his part was only about him.
Okay, Bob, thanks very much.
Thank you.
