Bob and Jack talk about grievances from President Trump’s first term that continue to shape his second-term conduct. They examine the federal search warrant recently executed at a Fulton County election facility seeking 2020 ballots, including the structure and purpose of the investigation and the president’s asserted authority to use federal law enforcement in election matters. They also discuss Trump’s $10 billion lawsuit against the IRS and the Treasury Department over the disclosure of his tax information, unpacking the basis of the claims and the institutional questions raised by a sitting president suing the executive branch he oversees.
Mentioned:
“Is the Administration Prepared to Deploy ICE to Police This Fall’s Elections?” by Bob Bauer (Executive Functions, Jan. 27, 2026)
Thumbnail: President Donald Trump speaks with members of the media before boarding Marine One on the South Lawn of the White House. (White House Photo.)
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.
This morning, we’re going to talk about two more examples of President Trump’s grievances from his first term, continuing to drive his conduct during his second term.
I’m speaking about the $10 billion lawsuit that he brought against the IRS and the Treasury Department for the leak of his income tax returns and information, and also the search warrant that was executed at an election center in Fulton County, Georgia for, quote, all physical ballots from the 2020 general election. I propose that we start with the Georgia matter first. Why don’t you tell us, just summarize what happened there?
As you say, there was a search warrant executed, a large number of boxes, I’ve seen press report reference to 700 boxes removed. This investigation, by the way, I think it’s important to note, was not conducted under the supervision of the U.S. attorney in the Northern District of Georgia. It was conducted by a U.S. attorney appointed to coordinate all civil and criminal cases of this nature, who holds an office, holds his office in the Eastern District of Missouri. I believe his name is Thomas Arbus. So what we have is, in effect, a 2020 election fraud special counsel. He can do this anywhere in the country.
He can supervise this anywhere in the country, and that’s what he’s doing in Georgia. Now, we have to keep in mind, I think this is all well known, but I think I’ll just emphasize it for the record here. The president has been focused on Georgia, among other states, where he believes fraud denied him the election in 2020.
He was confronted there with a claim completely to the contrary by the Republican Secretary of State, Brad Raffensperger. He famously, on a telephone call, asked Raffensperger to find the 11,000 plus votes that he needed to make up the margin against President Biden. And subsequently, the state of Georgia conducted a risk-limiting audit, which included a hand count that confirmed that President Biden had won the state by more than 12,000 votes.
There is no credible expert anywhere who has looked at this issue, much less with reference to the outcome of that hand count audit, who agrees with President Trump that there’s any evidence whatsoever of fraud in elections. He’s focused on Fulton County. That’s where these records were seized.
But I think we need to talk about the fundamental question as we go along of what this means for the use of law enforcement consistent with his claims of authority to overseas elections, the use of law enforcement generally for this purpose, and whether this is only a matter of grievance on his part that he’s continuing to pursue, or whether he’s laying the groundwork or testing the possibility of deploying these tactics in the future for future elections and in particular the midterms.
Okay, before we get to that hugely important question, can I just ask you one more question about the action that the government took? What could they, I mean, what is the point, do you think? I mean, we’re going to get to whether, you know, what the implications are for this use of federal executive power.
But before we get to that, is there any point to this particular raid or request for physical ballots from the 2020 general election? What is the ostensible purpose here?
It could fulfill a number of purposes. One is that it’s scratching his itch. He wants an investigation, he’s launched the investigation, he’s been thwarted at every turn in raising questions about it, and now he has struck out at Fulton County and he’s showing that he means it, that he doesn’t believe the election was honestly held and he wants an investigation.
That’s one thing. Secondly, he’s now raising new questions, presumably within his base in particular, I don’t know where else, about the election. After all, there’s now an active criminal investigation.
So in some sense, he’s taken an action that he can allege proves his point. A judge signed off on this warrant. There was some basis, presumably at law, for the seizure of this material.
So he’s creating facts on the ground, if you will, in support of his claim about a rigged election. And then thirdly, the last purpose is the one I know we’re going to get to, which is road testing the use of this kind of law enforcement authority as a means of addressing the control he’d like to exercise with respect to the midterms.
Okay. Why don’t you explain that? Explain what your concerns are, maybe tie it into the executive order that was issued last year.
Yes. So in the executive order that he issued in March, in which he took any number of actions to assert presidential authority over rulemaking in federal elections, he addressed mail-in voting, machinery, of course, both of which he believes is the basis or are the basis for fraud and rigged elections, strong views on the policies that states ought to be pursuing, for example, in providing their citizens with the option of mail voting.
And at the time he said — and I think it’s important for me to quote from what he said in a Truth Social post that accompanied the executive order. He wrote that the states must deal on these issues, on these fundamental rules issues with the federal government as represented by the president of the United States. The basic quote is they must also deal with the federal government. What the federal government is represented by the POTUS tells them for the good of our country to do.
So he’s taking a position that has no support in the constitutional text. The time, place, and manner rules confer the authority to make rules for the conduct of elections on states and localities, it resides with the states, and the Congress can intervene with respect to federal elections if it chooses to do so. There’s no mention of the president of the United States there.
Except, and I agree with you one hundred percent, but their theory is, well, that may be true, but there’s lots of federal law, civil and criminal law that relates to elections and the president is charged with the duty to faithfully execute the law. So doesn’t the president’s power come in that way, or is that the wrong way to think about it?
No, this is, I think, what is most worrying about what’s going on. Or he has strong views about not just what happened, but how the election system ought to be reformed. That implicates presidential authority, if you will, over rulemaking.
Rules that should be implemented, rules that should be appealed. Now, quite apart from the executive order, and there may be another one in the works, the use of the criminal justice system as a further wedge to seize control of or influence the course of the way election administrators perform their responsibilities around the country is something we need to be concerned about. It’s a claim that there are criminal issues, but the criminal issues are a pretext for inserting the federal government into the electoral process in the fashion that we may see now unfolding in Georgia.
So it has both a backward-looking, his grievance about 2020, and a forward-looking purpose, which is yet another means by which he can attempt to force federal control into the operation of states and the way they administer their elections.
But my question is — that goes to his purposes and his illicit or illegitimate purposes. My question is, isn’t it true that for a benign president, there is federal law enforcement authority related to criminal and civil law related to federal elections?
There absolutely is. And the question is —
That’s what he’s leveraging.
That’s what he’s leveraging, correct. And let me just add to that, there’s also the threat of it, the weaponization of the law for this purpose is potentially also something that he hopes will be a warning to election officials, even if he doesn’t necessarily deploy that force in the first instance.
And the last point on that I want to make real quickly is this, we haven’t talked about this piece of it. There are steps that he can take if he believes that the people have speculated about, if he believes that he needs to intervene in this election with the use of force in some fashion.
There are steps he can take, like the much discussed potential invocation of the Insurrection Act, as an exception to the Posse Comitatus statute, to deploy troops on the ground. And of course, he has already confronted the issues around his federalization of the National Guard. There are significant issues presented for him in both cases, but what about the use of law enforcement, just the use of law enforcement to bring force into these communities?
That’s what’s happened, of course, in Minnesota, and where it was specifically linked up to election security. In a letter that the Attorney General sent to Governor Walz, and we’ve written about this on our site, she linked cooperation with law enforcement in immigration matters with the state’s willingness to turn their voter rolls over for federal government inspection, which is a very hot issue and a point of contention between the states and the federal government at this time.
So let me ask you, can you just give a concrete example of how President Trump in the midterm elections might plausibly, illegitimately use his law enforcement power to influence, interrupt, or shape the outcome of an election? I assume we’re talking about congressional elections.
Yeah, for the moment we are, although, of course, you know, it’s a template that could carry over into presidential elections.
Just for this fall, what is a plausible use of this, plausible thing that he might do?
Well, so to sketch out a worst-case scenario here, or next-to-worst-case scenario, he alleges that fraud is afoot, that the only way, and he said this repeatedly, that Democrats can win elections is by cheating. All right, so right away he’s raised the presumption that there may be criminal legal violations afoot. So, he threatens on a number of fronts that he’s going to stop that fraud and he’s going to hold those who are responsible for it accountable.
That could mean he does invoke the Insurrection Act, there are some legal issues there we can discuss, but long and short of it, you know, he does that. Or alternatively, and I raised this issue in the post that we had up just the other day, he decides that he’s going to deploy ICE and he moves them either by threat, prepositions them or starts to move them into states in a way that, depending on timing, has a significant impact on voter confidence, voter concerns about their safety. It has a voter-suppressive effect.
And let’s assume he launches that only in the jurisdictions where, you know, he thinks it’s going to have an effect on Democratic turnout. Again, I’m sketching out the worst-case scenario. I’m not trying to, you know, put together here some fantastical ...
I want to be realistic about what could happen without at the same time saying that it will happen. But those are things that, looking at what he has said and done to this point, are not easily discounted as possibilities. And the point I want to stress here is the mere threat can have an effect even if he decides not to, you know, bring full force to bear down in a voting jurisdiction.
OK, given that what we’re talking about here are discretionary law enforcement decisions, basically, that as a matter of fact and as the Supreme Court has said in doctrine, the president has exclusive authority over, what, if anything, can be done to prepare for, redress, block, regulate these uses of federal law enforcement? It seems like it’s something that’s hard to stop.
I do think that the states can be prepared to move immediately into court. And for all the discretion that he can claim to exercise, I think the administration has significantly drawn down on its capital, if you will, on its credibility with the course on these issues. And so I think there are issues that you might not imagine a dissenting state could have prevailed upon in some other administration, that it might have a very good chance of getting a serious hearing about here, particularly in relation to the operation of the electoral process.
His positions are so aggressive, the position he took in the executive order is so completely without constitutional foundation. I think all of this suggests the states were in a position to potentially respond by taking emergency legal action. So I think that’s one thing that could make a very, very significant difference here that you might not otherwise think is possible.
So you’re talking about states going to federal court seeking injunctions against the president enforcing federal election law?
Absolutely. Yes, yes. And the other thing I’m going to say, and it’s significant in many, I think this needs to happen earlier rather than later.
It is hard to underestimate the degree to which civil society pressures can make an enormous difference. I mean, I think we have seen the effects of staunch resistance within all the relevant civil society sectors in the state of Minnesota and the effect that it’s had on public opinion generally. And I think drawing a line now and soon within these sectors.
How do you draw the lines? I mean, I don’t see how a federal court can issue an injunction or anyone has standing to seek the injunction until the president takes action or threatens in a way that’s very close to taking action.
I’m not well, I’m not referring to a legal action by civil society. I’m talking about pressure from the business community, faith communities. Lines are drawn into the sand.
You saw, for example, I would have liked to have seen it worded a little bit with a little bit more muscularity of the businesses in Minnesota, major businesses in Minnesota and a good number of them that signed a letter basically speaking to the escalation of this ice conflict in in Minnesota. I think that kind of pressure with the effect on public opinion that will have could make a significant difference in how the administration calculates his chances of success here and the decisions that it makes about what it’s prepared to do. And last but not least, let me say this election officials around the country, Democrats and Republicans really resent what he’s doing.
I mean, they resent the attack on professional election administration, the suggestion that there were parties to fraud in 2020, that they don’t know how to do their jobs. They can’t administer mail in voting. And then there’s a widespread frustration with that.
And they’re going to be speaking to their members of Congress and they’re going to be speaking to their communities. And I think that intersects with that larger civil society response that I think could make a difference here.
OK, let’s talk briefly about the lawsuit that President Trump brought, I think, yesterday, 10 billion dollars against the IRS and the Treasury Department in connection with the leak of his tax return information, his tax returns and tax return information during his first term. This is not a frivolous lawsuit. There are federal laws that allow someone whose tax returns are unlawfully disclosed to sue the federal government in federal court for damages.
And he’s got a non-frivolous Privacy Act claim as well. There are problems with it. I’m not saying he’s going to succeed.
There are statute of limitations issues. There’s a question whether the person who leaked the tax information was, in fact, an employee of the IRS, which is required under the statute. He was actually a contractor for Booz Allen.
So it’s not clear whether that counts as being an employee or officer of the United States as statute requires. And then there’s some problems with the Privacy Act claim as well. But setting those aside, I mean, it’s not a frivolous lawsuit on the merits, but it’s a strange one because of President Trump’s conception of his control over the executive branch, because he’s suing the federal government.
The Justice Department defends these lawsuits. They defend them very vigorously. Very analogous lawsuits brought in the past, even in connection with the same leak of information, have been defended robustly by the Justice Department.
Will President Trump allow his Justice Department to defend the lawsuit that he brought? Will he allow the Secretary of the Treasury, who is also the commissioner, the head of the IRS right now, will he allow him to be on the other side of the lawsuit against him? Will he demand that Pam Bondi settle with him for billions of dollars?
These are things that other presidents wouldn’t try. So this type of concern, for example, I don’t think arose to nearly the same degree, if at all, when Hunter Biden sued the IRS and the Justice Department defended. But they clearly arise here.
What thoughts do you have about that?
Well, I entirely agree that the questions that you raise about what it means for him to exercise, as he’s made it very clear he intends to do, full control of the executive branch, you know, those claims bear directly on the integrity of this legal action. Who really believes that the Department of Justice is in a position, even if not directly, in order to do so, to put up any kind of defense on the merits or to address this case in any way on the merits? He feels very strongly about this.
He’s made it very clear he believes he’s suffered not just speculative, but actual damages in the billions of dollars. He wants punitive damages, as I read the complaints, I recall the complaint as well. So what kind of integrity or guardrail is built into the operation of his version of the unitary executive in these circumstances?
Just one other quick point. Let’s assume, and this goes to how he conceives of the exercise of presidential power and the very personalized view he has of the president, that he believes he was wronged and that the Trump organization and his sons were wronged by the leak of his tax information and that he has some basis to believe that. And of course, the individual in question, who was, I think, a full-time contractor, has been sentenced for and held accountable under the criminal laws for this conduct.
The normal approach to all of the failures of the IRS security and screening procedures, the normal response would be to direct the IRS commissioner to tighten them up, to tighten them up so all taxpayers are protected. And he may be a particular example that he’s concerned with. But all taxpayers are protected by an improvement in these procedures.
And instead, he wants $10 billion because he’s singling out, in this instance, the wrong done to him. Instead of proceeding as president, it’s a matter of policy and legal authority. He’s proceeding through a private lawsuit to collect billions of dollars for the wrong done to him.
And I think that conception of the role that he has as president and sort of how he would respond in a circumstance like this of policy and administrative failure is extraordinarily telling. The only other thing I would say real quickly, the other thing I think about this, and this may be more of a political point than anything else, but it is quite remarkable. The lawsuit alleges that harm has been done not just to his reputation, but to his business, to his financial prospects, to the success of his business operations.
This against the background of the amount of money that Donald Trump and his family made in the presidency really strikes you. And it’s just remarkable that there was no second thought about making that kind of claim in that context.
So I’m not sure I agree with all of that. I don’t. I mean, it’s a very, it’s completely, it’s an unusual, it’s an unprecedented situation.
He does have plausible federal law claims against the government under both statutes that he invokes. They’re not frivolous claims. I’m not saying he’s going to win, but they’re not frivolous claims — unlike a lot of other lawsuits that he’s brought, for example, against the press, which I do believe to be frivolous. This is not a frivolous claim at all. You know, there already have been steps taken, as the IRS has argued in these lawsuits that have been brought out of these leaks to make sure they don’t happen in the future.
I’m not sure there’s much more for Trump to do. So for me, it’s, you know, I think it’s, I agree, extremely unusual. And it’s almost bizarre for the president to be suing the government for damages.
But he has a legal basis to do so. For me, the interesting question is, what is the Justice Department going to do in response? Are they even allowed to show up and defend?
What is the IRS going to do in response? Are they allowed to show up and defend? Are they allowed to make all the arguments they would normally make?
If they don’t make those arguments and Trump wins, what does that mean? What does that look like? Those are the types of questions that I think this case raises, as opposed to the legitimacy of him suing the government.
He has a legal claim, a plausible legal claim, it seems to me.
Well, let me let me just respond quickly to that, because it’s an interesting point of, I think, apparent disagreement between the two of us. When someone’s elected president of the United States, they surrender all sorts of private rights and privileges, if you will. They just agree to do that.
There’s certain things they cannot do. They cannot, for example, shake their security detail and go take a walk along the Potomac so that they can sort of reflect on things. There’s certain things they’re not expected to do, not and should not do, because they have a constitutional role, a constitutional role that puts them in a position of attending to the public interest at some considerable sacrifice, presumably, to private rights that they would otherwise want to exercise.
That’s what we want in a president. We don’t want a president, for example, speaking of the first topic we just discussed, to decide to use the criminal laws to strike back at his political opponents. That’s also a private grievance.
He ran for president as a candidate. He didn’t run for president. You know, he was an incumbent president in 2020, but he ran as a candidate.
And in his personal capacity, using the government to settle scores with political opposition is something that maybe as a candidate who lost, he might find various ways to do various claims to make. But we don’t expect him to do that as president with the full power of the U.S. government behind him. And I think the same thinking applies to his use of government power to settle scores with the government over the release of this tax information.
I accept all of that, except one thing, and I would not—I don’t think that it’s prudent for a president to do this. But when you say we don’t expect this to happen, I’m not sure who the we is. I mean, he ran on these grievances and he has a legitimate legal claim here.
I’m not saying it’s a good idea for him to sue or that it’s moral for him to sue. I’m just saying here, unlike in many of the lawsuits he’s brought, it seems to me he has a colorable legal claim and, you know, he’s exercising his legal rights. I agree with you that presidents have to give up all sorts of things.
This is completely one off. President has to give up a claim to a billion dollars in damages or ten billion dollars in damages if it’s that much. But I don’t know about that.
That is a judgment call about, you know, the norms of a president who has a plausible legal claim, who is motivated by grievance. And I don’t love this lawsuit. I just think it stands on a much different footing from a lot of the other lawsuits he’s brought in terms of its legal validity.
And it raises all sorts of completely very difficult questions about how the executive branch is going to function here.
How do you see it in relation, for example, to the lawsuits he’s filed against media organizations?
I think those are frivolous. Totally frivolous.
Well, ome of them resulted in multimillion dollars.
Totally frivolous and abuses of the government. They’re totally frivolous and abuses of government power. I don’t think — Let me put it this way — And I think you may agree with this. If he were a private citizen bringing this lawsuit, there would be no doubt about it that it would be fine to bring. And but I don’t I don’t think that the media suits, I think those are frivolous lawsuits.
This is not a frivolous lawsuit on the merits, is what I’m saying.
Well, just to just to add this, I mean, this is an interesting question, again, of what we what we expect presidents to give up so that we’re confident they’re attending not to their personal —
Bob, you keep saying we. Who is we?
Well, that’s a fair question. I believe that if you were to put the question and maybe I’m wrong, if it were polled, do you think that the president’s paramount concern as president should be the public interest and should be in those circumstances prepared to defer the pursuit of private interests? And by the way, this applies, of course, to his business activities.
I think the answer to the general question would be overwhelmingly, yes, that’s what we expect when we elect the president of the United States. So I think the we you’re right, I shouldn’t say we because there may be some dissent there, but I think there would be a general public view that his overriding responsibility here, even if it means some sacrifice of private rights, is to the public as a whole and to the administration of his office in the interest of everybody and not in the interest of his family or the Trump organization or himself and the billions of dollars like in this lawsuit.
I agree with that. I completely agree with that. I think it’s much more complicated here because this was an egregious violation of federal law, unprecedented in its scale and context in the run up to a campaign.
And I think, you know, again, I don’t like you know, I don’t like the tit for tat. I don’t like the president making money off the presidency. I would not have advised him to bring this lawsuit.
I just think it’s it’s different from the other ones. And it’s because it has a valid legal claim or not a valid legal claim, a plausible legal claim at the basis of it. I’m not sure we’re disagreeing.
I mean, I don’t disagree that this is not something I would want the president doing. I think there are a lot of people that are going to cheer it on. A lot of certainly a lot of his supporters will and even people who I think won’t necessarily be supportive of his lawsuit strategy in other contexts, like the media might think he was genuinely wronged here in violation of federal law in a way that’s entirely unprecedented and terrible for the country to have the IRS leaking presidential candidates’ and sitting presidents’ tax returns is really bad thing.
It wasn’t an action by the IRS as an institution. It was a failure on their part to stop this rogue contractor from accessing their —
I know, but there are rules about the way that Congress set up the system to have when this happened, it was so egregious that they contemplated that the individual whose tax returns were disclosed could sue the federal government for damages, which is an unusual thing. And there’s a separate claim for the fact that the IRS did not for the under the Privacy Act, for the notion that it didn’t take precautions, adequate precautions to prevent this type of thing, which they have admitted since then that their precautions and their systems were inadequate. So I just don’t think you can that one can discount what this is a response to.
I mean, I agree with you that this is you know, we’re out in Trump lalaland where he does things other presidents don’t do and they go beyond the traditional expectations of the office. This one just seems a little different to me.
Well, and so just and so where I hear it, I think what many probably a majority hope is that a president steps into that situation and says, look, I was wronged and maybe the Trump organization sues and he doesn’t, you know, maybe he says to his son, to the Trump organization, you bring the lawsuit. I can’t do it. I’m president of the United States.
Yeah. It’s the wrong thing for me to do.
Speaker 2
Yeah, I agree. I mean, this is this is not what I want my president doing. I agree with you.
I agree that it’s not what my president doing. I’m just saying that he was really and the Trump family and organization were seriously, seriously wronged here. It’s a serious violation of public trust and a serious violation of the law, whether they can recover or not.
And and, you know, it was it was a huge deal. So I just think the the fact that this was a huge deal and a serious breach of public trust, you know, way up there in terms of seriousness and the fact that there’s a plausible, though not airtight legal claim, makes this one different to me. I agree with you much better if just the Trump organization or his children sue.
Certainly, you know, again, President Biden’s son sued and that case was dismissed. And Biden Justice Department acted at arm’s length from the White House that, you know, that’s not going to happen here. But that would have been much better.
I agree. And that’s what a that’s what a normal president would have done in this situation. A normal president at most would have stayed out of it, would have shut himself off from the Justice Department and the IRS.
You know, if the Trump organization or the children want to bring the lawsuit, that’s their business. But there would be a firewall.
Correct. Exactly.
It would have been a much better way to do it. I completely agree.
And then the people who were responsible for the IRS for, you know, failing to enforce these safeguards are fired. There’s a huge reform project that’s put together. I mean, there’s so many things a president could do.
Well, I agree. OK, I’ll give you the last word on that — Thank you.
Thank you.
