As the 2026 midterms approach, Jack and Bob give a big-picture overview of the Trump administration’s efforts to use federal law enforcement and executive power to influence the congressional elections. They discuss the constitutional limits on presidential authority over election rules, the administration’s novel tactics and mounting losses in court thus far, and the potential deployment of the military or ICE to the polls. They also examine the effects of the administration’s agenda on voter turnout, public confidence in the electoral process, and the risk of contested results.
Thumbnail: A Fulton County polling facility. (Jason Riedy, https://flic.kr/p/7cRfV9, CC BY 2.0.)
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.
Bob Bauer: Good morning, Jack.
Jack Goldsmith: Morning, Bob. How are you?
Good. And you?
I’m fine, thank you.
Today we’re going to talk about the Trump administration’s plans, as we know them, to use federal law enforcement and the presidency to impact the congressional elections this fall. And there’s been a lot going on in this area—a lot of executive action, a lot of litigation.
We’re just going to try to give a big-picture overview of what the aims are, what the government’s doing, and what’s happening on the ground. So let’s start off by asking: What is the overall goal of the Trump administration? What are they saying that they’re doing with regard to the congressional elections of 2026?
They’re concerned with both the elections in 2026 and elections more generally, looking ahead to 2028, of course. And past elections, too, to be fair. And past elections as well.
Their basic position is—Donald Trump’s basic position is—that the election system in the United States is rife with fraud. It is rigged, and it is rigged, in particular, to produce Democratic victories. Not rigged when it produces Republican victories, but definitely rigged when it produces Democratic victories.
He wants to vindicate his position that he didn’t lose in 2020, and he’s pushing extremely hard to introduce changes in the rules that he believes address his concern with election integrity, such as it is, and clearly to weaken public confidence in the electoral process and the accuracy of vote counts that he is unhappy with, that go in a direction different than he wants them to go.
And before we get to the details, what do you speculate the aim is in diminishing voter confidence in the election process? Is that setting himself up to deny the validity of elections? Is that the idea?
Yes. I think there are a few, I think, objectives here. First, to the extent that he can, he’d like to influence the outcome of the 2026 midterms. He would like what he could do to throw obstacles into the path of voting in a way that will reduce the prospects of a Democratic victory, either taking the House or potentially taking both the House and the Senate.
And he’s made it very clear that he takes that very personally. He’s not on the ballot, but he thinks that if the Democrats regain control of Congress, he will be at least subject to investigation and potentially also to impeachment. So he would like to influence the outcome of that election and prevent a Democratic takeover of Congress.
Secondly, I think that he wants to lay the foundation, if he’s unsuccessful in preventing Democratic control, for arguing that the Congress that then emerges under Democratic control is illegitimate, the same way that he’s characterizing the 2020 election as having been rigged and falsely decided. And so he will pick that up as a rhetorical tool and use it however he wishes.
And I also think there’s an intermediate point I want to stress, which is between the time that the elections take place and the time that a new Congress is sworn in. He may well argue—and this is a complicated topic; we can’t get into it today in any great detail—that the House has to do something to prevent the seating of Democratic members who were selected in a rigged electoral process. So that would be another thing which would try to influence the outcome of the election post-election in the House of Representatives.
So what are the main lines of focus or attack by the administration? What kind of voting problems are they focused on?
First and foremost, I suppose if you were to take the one that he returns to most often, it’s the claim that people who are not eligible to vote, in particular non-citizens, are voting in our elections. And we can talk about the ways in which he wants to attack that problem.
Secondly, he believes that mail voting, that is, supported, of course, by many states, is rife with fraud. He wants to go to a system of pure hand count of paper ballots. And so, in a variety of ways, he’s been attacking the institution of mail voting.
Thirdly, he distrusts voting machinery, or so he claims, and he’s taking steps to undermine public confidence and maybe even, substantively, to affect the use of voting machinery.
So those are the principal lines of attack. But he pursues these in different ways through different instrumentalities and purported exercises of authority.
So let’s go through the kind of elements of the government that he’s using in an unusual way to kind of influence those elements of voting. My understanding is that he’s basically used lots of government agencies, including ones not normally involved in these processes, toward these ends. Can you walk us through that?
Certainly. Let’s start with, for example, executive orders. He’s issued two. They, of course, originate in the White House. And there he has installed, as a sort of director of election integrity, a well-known election denialist who’s played a direct role in orchestrating some of the attacks that he’s launched on the electoral process.
So we begin with the White House. Then we have the Department of Justice. We have the Department of Homeland Security. The intelligence community has certainly come into play recently. He appointed Bill Pulte, who has no experience in intelligence—or rather, he designated him to be the interim director, if you will, of the Office of the Director of National Intelligence.
And one of the charges to Pulte was that he use this occasion to support the president’s claim that there was all sorts of mischief in prior administrations, all sorts of abuses of the intelligence process, and, in particular, interference with his election in 2016.
And it’s interesting that Mr. Pulte, again, without any experience in intelligence, has appointed as his chief of staff a woman whose prior service in politics has been as the head of election integrity, focused on election integrity claims at the Republican National Committee. That’s in the intelligence community that that appointment has been made.
I think I mentioned the Department of Justice. The United States Postal Service he has also attempted to bring into this effort. So there’s a range of authorities and agencies, exercising those authorities, that he’s dedicated to this larger task as we’ve been discussing it.
So the one thing I noticed in the last couple of days is that DOJ may be doing lots of things, but I saw that—I think it may have been the Civil Rights Division, but I’m not sure—there had been a letter sent to election officials in every state threatening them with criminal investigation if they knowingly include, I believe, non-citizens as people who may vote. Is that correct?
And explain, is that unusual? I don’t even know what criminal law DOJ would be invoking there. And is that kind of threat unusual from DOJ in the election process?
Yes, it certainly is. I mean, DOJ, of course, has been active on the criminal side, but out of the Civil Division came this letter to 50 states and the District of Columbia, in effect, threatening election officials with criminal prosecution if, in some way, they fail, in some criminally cognizable way, to keep non-citizens from voting.
And the letter calls upon them to identify the steps they’re going to take to avoid making this mistake, subjecting themselves in this way to criminal liability, within five days of the receipt of the letter. I think it’s five days. It could have been 10. Either way, a laughable number of days, with a very vague request that they explain what it is that they’re going to do to meet this demand.
So, yes, that’s extraordinary. The legal basis for it is unclear. The role of the Civil Division—inappropriate.
I’m not an election expert, but it’s not obvious what criminal law would be applicable there. Has there been prosecutions like that before?
Have there been criminal prosecutions? Well, yes, there’ve been criminal prosecutions of election officials. It’s interesting that you mention—
No, no—I’m talking about for preventing non-citizens from voting.
No, not in the terms in which he’s described it. I’m not aware of anything like that.
I should mention there was a criminal prosecution in the state of Colorado of an election official who had conspired with election denialists to give them illegal access to voting materials and machinery to, in effect, work on establishing that the election was rigged.
And President Trump waged a campaign that was ultimately successful to have her pardoned of the state crimes of which she was convicted. So it’s actually gone the other way.
So, of the agencies you mentioned—they’re all doing lots of different things toward the ends that you described earlier. Can you just tell us some of the ones that you think are most consequential and most concerned about? And by “most consequential and concerned about,” I mean that you consider to be unlawful or illegitimate acts of the administration.
It’s something we’re very familiar with in other areas, and that’s the weaponization, for this purpose, of the Department of Justice.
The Department of Justice, purportedly to investigate potential crimes committed in connection with Georgia’s presidential election count in 2020, seized ballot materials in Fulton County, Georgia. And the claim it was making—that it was in a position to investigate prosecutable crimes—has been rejected by a federal court that pointed out that the statute of limitations had long passed.
But among the steps that DOJ took was demanding personal information of the large, large number of election workers who were serving the state of Georgia in this capacity in 2020. And the court made a point of saying that there was no basis for the demand for this information. It was intrusive.
Of course, it’s also, I think, fair to say, meant to send a sort of chill through the election official community. So this kind of use of the Department of Justice to terrorize the election official community, keep the threat of criminal prosecution hovering over them, is a very real threat.
And I should add, by the way, speaking of the sources of authority that are being exercised, or the sources of power that are being put to use here, the direction of DOJ in this matter came out of the White House from this gentleman, Kurt Olson, who’s been put in charge of the president’s version of election integrity.
But what is the end goal of that? My understanding is that a judge stopped that investigation in Georgia recently. Isn’t that right?
That’s correct.
And he did so mainly because the statute of limitations had run on any possible crime?
Yes. And also there was that issue that I mentioned of the illegal demand, without basis, for reams of personal information about election workers.
But what is the—so they’re doing that in other places. What is the goal there? I mean, you said to intimidate election officials, but with what goal? I mean, what are they trying to intimidate them into doing?
Well, let’s start with these very dramatic actions. They certainly serve to support the president’s claims publicly and to weaken public confidence in the electoral process. He may view this as potentially softening up the election community to be more receptive to other legal demands that he has illegally made and that the courts have so far rejected.
It may also be that he is looking to induce anxiety in the electorate, with effects on turnout.
So you said at the very beginning—this is something, or I think we said, I think everybody understands—something he cares deeply about. So, on the one hand, this may be the expression of just a strong sort of abiding personal impulse that he has to create these pressures and to strike out against the people who he thinks denied him the election in 2020.
But it does not help the process for election officials to be trying to conduct their operation under fear of criminal prosecution, or for voters to believe that the electoral process is enveloped in suspicions of criminal misconduct and rigging.
I agree with that. I agree that one aim is to diminish confidence in the electoral process. Although if the federal courts are systematically rejecting these efforts, it’s conceivable that it could have the opposite impact.
And I understand that it’s uncomfortable and awful for election officials to be under these pressures. What I don’t understand is what leverage they—if this is even the right way to think about it—what leverage the administration thinks it gets over the election officials.
Does it think that by threatening criminal prosecutions it’s going to somehow give them some electoral advantage? Are they perhaps genuinely concerned about the problem of non-citizen voting? I just don’t understand what the threat against election officials is aimed to do beyond, you know, diminishing confidence in the election and serving the president’s obsession with this issue.
He has made, you know, various legal demands that the professional election administration community has stood up to and has rejected. And to some extent, I think he’s making it clear there’s a price to be paid for opposing me on this.
So I’ll give you an example. He wants states to turn over the unredacted voter rolls so that he can have the United States government—and we should talk about the constitutional issue here—have the United States government, in effect, monitoring and revising, or directing the revision of, the voter registration rolls that states create and manage.
And the states have stood up to this. The states have attacked that and successfully have won 10 consecutive cases in court, if I count correctly, and at least one case on appeal.
He may be striking back at them and saying, “You have to cooperate with us. You have to cooperate with us, or you stand a chance of being criminally prosecuted.”
So this resistance has to stop. That could be the message, which is backed up by these threats of criminal prosecution.
So I can’t enumerate all of the ways in which the threat of criminal prosecution could affect the conduct of election officials, but that’s one example.
And what about the administration’s efforts to, in effect, impose federal standards from the presidency on the way elections happen? I’m thinking about—didn’t they try to impose standards on how voting machinery was done? Weren’t they trying to require a standard of analysis for ineligible voters? I mean, what kind of things—they’re trying to set federal standards from the White House, effectively. Can you walk through that? Just a couple of examples, and why that’s unprecedented and, I think, unlawful? Explain it.
Yes. An example would be—and this relates to his obsession with non-citizen voting, or at least his claims of concern with non-citizen voting—and that is his desire to impose documentary proof-of-citizenship requirements at the federal level.
And he’s tried to do this in a number of ways, just affecting how registration is effected at the federal level, but also how it’s effected for, say, military and overseas voters, or the support for registration that’s provided by public assistance agencies.
He’s attempted to impose his own requirements inconsistent with, or in addition to, the requirements that Congress has enacted. And the courts have been very clear, consistently: the rulemaking authority in federal elections under the Time, Place, and Manner Clause is reserved to the states, unless Congress chooses, for federal elections, to supplant the state role.
There is no role for the president in setting rules for the conduct of elections. The president certainly can enforce federal law against election crimes. But he cannot create the rules that he then seeks to enforce.
Yeah. So I think this is an important distinction. It’s the Congress that has a constitutional role in setting the rules for these elections. The president and the executive branch have no formal role, but there are an array of election laws and criminal laws related to election laws where the Justice Department has discretionary enforcement authority.
So that’s the leverage they’re trying to use, I take it, to shape—to, in fact, kind of shoehorn themselves into being able to set federal standards on these elections. Is that right?
Yes. Yes. And he does, by the way—I should add one other thing to the threat of criminal prosecution—also the threat of cutting off federal funding for unrelated state programs.
So, for example, recently there have been reports that the federal government is preparing to advise the states, if it hasn’t already done so, that they will be penalized and anti-terrorism funding that they might otherwise receive will be withheld if they don’t comply with election-integrity-related demands from this administration.
So he’s using both criminal law enforcement and federal funding cutoffs as tools with which to effectuate his policy.
Yeah. So the second thing was just in the news a couple of days ago. Is that likely to work? I mean, do you know how important these terrorism funds are to the states, and whether that conditional funding for these election aims is lawful? And is it likely to work?
From every sort of evidence that we have, from the way the courts have been deciding these cases, I do not believe it’s going to work.
I cannot at the moment assess how any of these states actually prioritize, or what plans they have for the use of this money. I’ve seen reports that the states that are most affected—the amounts involved are the largest for large blue states like New York and California. But I’m not an expert on that. I’m not sure about that.
But I do not think it is going to be sustained legally. I think it’s going to fall to the ground in fairly short order.
So it seems to me, again, as a non-expert, kind of newspaper-consumer of these issues, that the administration is trying all this novel stuff, planning, trying to use the executive branch to shoehorn in favorable, at least to the administration, election rules, and largely thus far failing—and failing mainly because they’re losing in court in these early lawsuits.
So, one, is that generally your sense of things? And two—well, let’s start there. Is that generally your sense of things?
Yes. I think the attempt to create presidential control of the federal election rulemaking process is destined to fail. He may win a case on procedural grounds here and there, on a standing question, whether the correct party has sued. But on the fundamental constitutional question, I mean, it’s as straightforward as it could possibly be. He doesn’t have the authority that he’s attempting to exercise.
And the tools that he’s using to impose these rules, I think, are not going to succeed in the courts. So I do think they’re going to fail, but he’s going to continue.
I just want to mention, if I could, two things. One, he’s issued two executive orders, one in March of 2025 and one a year later, I think also in March of 2026, but thereabouts.
And one of the steps that he took, in addition to the ones that we’ve discussed, was to direct the United States Postal Service to essentially establish a rulemaking by which it would create its own list of eligible voters and refuse to transmit ballots to states that were not using that list as the mechanism for their own eligibility requirements, as the path to their own eligibility requirements.
These sorts of gambits, these moves, are, I think, plainly unconstitutional.
He’s already failed in court, in at least one court, on this United States Postal Service rulemaking effort. The Postal Service hasn’t produced the rule yet, but it has produced a proposed rule.
But this gives you an example, or another idea, of how far he’s willing to go and the number of agencies that he’s willing to engage in this overall program.
So it seems to me that, as we get closer to the election, the tool he has—potentially the most consequential tool under his control—is criminal enforcement discretion.
And they’ve already been making these threats in various ways. But what are you most worried about in the run-up to the election, as we get very close, in terms of aggressive steps they might take, either using criminal process or threats of criminal process close to the election, and/or the military in the homeland?
I mean, those are the two mechanisms that, in theory—again, the trigger for using the military under the Insurrection Act is fairly low. If he decides to use that, there are other ways to deploy the National Guard. There are limits, uncertain in my view, on the use of the military in connection with elections.
What are you worried about in the week before the election if these other methods don’t work? What is the next level of concern?
I would distinguish between some very aggressive steps that he could take without emergency authority and then different steps that he could take with the exercise of what he would declare to be emergency authority.
Let’s start with non-emergency authority first.
The deployment—I would list the deployment of ICE. He’s preoccupied with non-citizen voting, at least rhetorically. He could deploy ICE to election jurisdictions and basically continue there, with a focus on non-citizen voting, a program of arrests, mass arrests, or the threat of mass arrests that we’ve seen in other states.
ICE is currently arresting a few thousand a day right now. He could take that particular law enforcement exercise, as he sees it, and bring it directly into the electoral process, alleging that there’s massive non-citizen voting taking place or could be taking place. He’s going to have ICE positioned in a way to stop it.
I should mention, I believe it was Todd Blanche who actually said—and I think it was at a CPAC event—that he couldn’t understand why anybody wouldn’t want ICE to be on hand to make sure that non-citizens didn’t vote. He explicitly said that.
What is the concern there? Is the concern that the ramping up of aggressive deployment of ICE against non-citizens will chill eligible voters from voting?
Absolutely. It’s the same concern.
How does that work? Unpack that.
Yeah. Well, whether it’s the National Guard—we’ll talk about the Insurrection Act in a minute—the National Guard, or the regular military, or ICE, when you have a federal armed presence in and around the voting process, it is going to have a direct effect on the vote. It’s going to have an effect on who’s willing to show up at the polls.
On eligible voters.
On eligible voters, absolutely. After all, an eligible voter who is worried that he or she may be mistakenly swept up in an arrest may not be prepared to take that chance. Those who are not even concerned about the potential for mistake may be worried about chaos around the polling place. They may fear for their physical safety.
It’s precisely the opposite of the conditions for an orderly voting process that we normally expect and promote.
And the theory would be that that fear would be asymmetric on Democratic-supported voters.
That would certainly be the expectation of the administration. Yes.
Okay. Besides ICE, what else? Besides the deployment of ICE, are there other things you worry about in the run-up?
Well, again, I don’t want to disregard—and we’ve seen this in other contexts—the potential calling of the National Guard for this purpose. And then, of course, the invocation of the Insurrection Act that you mentioned, which was actively considered in the Trump administration in 2020. And the Department of Justice at that point pushed back. We don’t see any reason to imagine the Department of Justice in this administration would necessarily push back.
And then you have the military involved. And the threat—even the threat, and he likes to bandy about threats, particularly in the run-up to the election—can control the news. It can dominate the news and have the same depressive effect on turnout that we were talking about earlier.
And the idea is that, again, just to make it explicit, the deployment or threatened deployment of the military, under whatever authority, would have a differential impact in suppressing the Democratic vote.
That would absolutely be their expectation. In big cities, blue cities, absolutely. That would be their expectation.
Okay. And we don’t have time here to discuss—you and I have talked a lot for many years about the Insurrection Act, how the triggers are fairly soft. And there’s been litigation over other deployments of the National Guard, but we still haven’t seen a full-blown litigation. We haven’t seen litigation yet over the meaning of the Insurrection Act.
So that could be, if he went that route, a whole lot of novel issues being—or novel in the contemporary context—issues being addressed by federal courts in a probably fast-moving, high-stakes context.
Absolutely. And again, chaos serves its purposes. It serves the purposes of raising the profile of his issue, which is that the election is rigged. It serves the purpose of potentially discouraging turnout. It serves the purpose of making an argument that members on the Democratic side who were elected to Congress and show up to be sworn in shouldn’t be admitted because they are not legitimately elected.
I mean, he may not succeed in court, but there’s much of this program that I’m sure he thinks is productive that he can achieve.
So, for what it’s worth—and I could be wrong about this, of course—I think that what you just said is possibly true, but it’s also possibly true that all of these outside-the-box, very aggressive actions could be seen, at this point, in his relatively weakened state compared to 18 months ago, as self-defeating. It could be seen as him flailing around unlawfully to try to prevent something, and it could kind of delegitimize his efforts with at least a majority of the country, it seems to me.
Yes. It could energize already very energetic Democratic anti-Trump turnout. That’s certainly possible, and it could be viewed as flailing and weak, but it will dominate the news. He will, as always, control the narrative to a significant extent.
And so, along with the potential failure overall, he will be doing a significant amount of damage.
I just want to say one thing about civil society. One thing that is critically important: there are groups out there that are doing extraordinary work protecting the vote that have been successful in court, that are certainly anticipating and preparing for other steps that he could take, like the ones that we’ve discussed here.
One thing that is critically important for voters who have to evaluate his claims and who have to decide what it means for their participation is the leadership of civil society. This is what I’ve discovered around the country: what they hear from their business community, what they hear from the faith community, what they hear from the veterans community, the first responders community.
If civil society stands up to this to protect the electoral process, rebuts these claims, and encourages people to retain faith in the process, I can’t overstate how important that is going to wind up being.
It also seems to me to be at least as important, if not more so, is the response of the marginal Republicans in Congress. I mean, whether this has Republican acquiescence or not in Congress strikes me as hugely, hugely important.
He tends to get away with things when the Republicans in Congress sit on their hands, and he tends to back down when they rise up against him. It hasn’t happened often, but it has happened. That seems to me to be the very most important thing in response to this.
I agree, which is why it’s dispiriting that Congress has allowed Bill Pulte to continue to operate over the intelligence community at ODNI, at the intelligence director’s office, and why it would be very dispiriting, given his history, if Congress confirms Todd Blanche formally to be the next attorney general.
Okay. The last issue is—and maybe the most speculative—is let’s imagine none of these tactics work, or at least that it’s clear that the Democrats, let’s just hypothesize, win the House, let’s say by a large margin. There’s still the question of the seating of Democratic members-elect, and there’s still the possibility, I suppose, of the president working with members of Congress to obstruct or stop the seating of those elected members.
Can you—and I know this is complicated—but can you just give us the overview of that?
It is definitely a question. I don’t know at the moment that we can say that it’s a threat, but the transition from one Congress to the other is complicated. It affords the Clerk of the House a very significant role in determining who the members-elect are, who can vote for the next Speaker, and so that is definitely one of the scenarios that has to be planned for.
If there’s a complete breakdown in respect for the constitutional order and for norms, then there is potentially some mischief—I don’t think eventually likely to succeed—but a mischief that could be practiced toward the end of upending the normal way that members of Congress arrive with certificates in hand, are recognized as members-elect, elect the next Speaker, are sworn in, and the new Congress then proceeds under the membership and under the control of the party that won the last election.
So it’s a complicated question, as you point out, but it is definitely an issue that needs to be addressed.
And it’s also an issue that, I mean, I think is largely—again, I’m not an expert on this—but largely under the control of Congress itself. This might well be something that courts deem a political question. Is that fair?
Yes. It may be, and we’ve seen this in the past, it may be that in an extreme case the Court finds a way to intervene anyway. And I can imagine some extreme cases where I wouldn’t rule out the possibility of the Court deciding to take some action.
This is very speculative, but the House is the ultimate constitutional judge of the returns of its members. And so it’s difficult to see, although it’s possible, how the courts insert themselves into a controversy of that nature.
All right. Thanks very much.
Thank you.
