A Critical Week Ahead for Democracy
As I sat down this morning to try to catch you up on the state of play of the various Trump administration threats to the sanctity of the midterms elections, I realized anew how hard it is to keep track of it all — and how much that is the point.
The scale of the many different percolating threats, the complexity of the legal battles to beat back the federal government from an unlawful role in state elections, and the relentless disinformation campaign intended to delegitimate elections all combine intentionally to overwhelm the senses.
Even though we’ve seen this coming from virtually the moment the last election was over, Trump’s full-court press still swamps the political and media environments. It also threatens to exceed our imaginations. For as foreseeable as this was, I still would have shuddered if you had told me a year ago where things would stand in the second week of September 2026, with voting already getting underway.
President Trump’s uber-aggressive executive order in March calling for what is essentially a federal takeover of election administration remains in play with Election Day under two months out. We’re once again in the unenviable position of hoping that the Roberts Court will “do the right thing” and close the Pandora’s box of ills that Trump’s elections EO unleashes.
The lateness of the hour, as election law expert Rick Hasen points out, should on its own be sufficient for the Supreme Court to rule against Trump on the new postal rules on mail-in ballots that his executive order spawned. Chaos and uncertainty doesn’t begin to capture the sheer impossibility of the task the USPS and state election administrators would face if the Supreme Court rules for Trump:
I have never in over thirty years of teaching and studying election cases ever seen an attempt like this one to roll out a major change in election administration against the will of state and local election officials on a time frame that is certain to impede on states’ ability to run elections and that will certainly disenfranchise thousands if not millions of voters who will not get ballots if the USPS rule is put into effect for this election. Those voters include those who are elderly, in rural communities, with certain disabilities, traveling in the military (within the U.S) or for other reasons. This is not a rollout that hurts Democrats and helps Republicans; it’s a rule that threatens mass disenfranchisement of voters across the political spectrum and in red and blue states.
It’s a game of chicken between the president and the Supreme Court. It makes you want to avert your eyes.
After a flurry of weekend legal moves, things are likely to begin moving more quickly this week at the First Circuit Court of Appeals and ultimately at the Supreme Court in the complicated litigation over the Postal Service’s role in mailing ballots even as the USPS inspector general is opening his own probe of a whistleblower’s complaint.
While that is going on, other Trump attacks on the midterms continue on multiple fronts:
The Trump DOJ has issued seven “voter-related” subpoenas over the past three months to the secretary of state in Nevada, where top federal prosecutor Sigal Chatta has repeatedly sought to cast doubt on the integrity of federal elections, the NYT reports. The subpoenas come after the Trump DOJ failed to obtain private voter information in civil lawsuits against Nevada and two dozen other states.
The Trump DOJ leadership — which already cancelled mandatory election law training — is now pressing U.S. attorneys around the country to prioritize prosecuting the phantom of illegal noncitizen voting under a rarely tested statute, Bloomberg reports.
DHS Secretary Markwayne Mullin sent a letter to Attorney General Todd Blanche last week that sought to cast doubt on digital voting systems and lay the groundwork for claiming that some electronically cast or counted votes are invalid, the NYT reports.
You can plainly see Trump’s old 2020 playbook at work again, but this time using a whole-of-government approach to tamper with the midterm elections on the front end and then discredit the election results on the back end.
Trump DOJ Watch
The Retribution: Even before Hill Republicans last month sought a criminal investigation of Dr. Tony Fauci for taking the Fifth at a congressional hearing, the Trump DOJ had been conducting since last year a “sprawling and aggressive” probe of Fauci that has scrutinized at least eight scientists, the NYT reports: “Investigators have demanded phone, email, grant and payment records, as well as grand jury testimony by scientists.”
The Corruption: Federal prosecutors in Miami closed a criminal probe into Venezuelan businessman Alejandro Betancourt on orders from the office of then-Deputy Attorney General Todd Blanche as part of an effort by the Trump administration to enlist Betancourt to engineer a massive new oil deal with Venezuela’s government, CNN reports.
The “Anti-Weaponization” Slush Fund: The Trump administration must cough up the names of the people who devised the structure of the $1.776 billion “anti-weaponization” slush fund that was of the bogus settlement of President Trump lawsuit against the IRS, a federal magistrate judge in the Eastern District of Virginia ruled in a case challenging the slush fund.
First Look at Fed Indictment of ICE Agent
The unsealed federal indictment of ICE agent Christian Castro charges him with six counts of making false statements in the aftermath of the Jan. 14 shooting in Minneapolis during Operation Metro Surge. He is accused of lying about:
being struck with a broom;
being struck with a snow shovel;
firing his gun while seated or lying on his back;
the duration of the altercation prior to the shooting.
Grand Juries Stood Up to Midway Blitz
Federal grand juries in Chicago held the line during last year’s flurry of prosecutions of protesters during Operation Midway Blitz by demanding more evidence from prosecutors, including the testimony of CBP commander Greg Bovino, according to court records newly unsealed at the request of the Chicago Sun-Times.
In one case, an assistant U.S. attorney conceded that “the government does not possess and cannot realistically obtain all of the evidence the grand jury has requested.”
In the end, grand juries indicted a subset of protesters, but prosecutors won convictions against only two of the 33 Midway Blitz defendants.
Map of the Day
In the tens of thousands of habeas cases filed since the Trump administration unilaterally changed a three-decade-old interpretation of federal law last year, a significant disparity exists in how quickly federal courts are issuing rulings freeing detainees, a ProPublica analysis has found (click the map for a larger version):
While the vast majority of federal judges have ruled against the Trump administration, the speed with which they have done so has varied widely, with detention-center-heavy Louisiana and Mississippi moving the slowest, at an average of nearly three months.
Hegseth’s Unprecedented Leak Probe
“U.S. government investigators have taken the extraordinary step of subjecting roughly 50 members of the U.S. military’s Joint Staff to polygraph tests over leaks to journalists, including about how the Iran war has created a shortage of crucial munitions, according to officials briefed on the move,” the NYT reports.
Quote of the Day
“I think it is fair to say the wheels are coming off. It’s sort of like if you had a car and you took out 10 percent of the parts of the car. It’s not that the car is going to be 10 percent slower. The car is not going to work.”—Don Moynihan, professor of public policy at the University of Michigan, on the Trump II hollowing out of the federal government
Far-Right AfD Wins Big In Germany
In the state election in Saxony-Anhalt on Sunday, the far-right Alternative for Germany won 44 percent of the vote, more than doubling its 2021 haul.
Historian Adam Tooze offers this context:
Despite their remarkable showing, it is not obvious that the AfD will form the next government in Sachsen-Anhalt. The other parties may arrange themselves to keep the AfD out of power. At the national level, the AfD are even further from government. Nevertheless, this result shakes Germany’s political system. It shows how far the familiar political norms of the Federal Republic have disintegrated. Mecklenburg Vorpommern, another small East German state, will vote on September 20th and the outcome may well be similar. The crisis of German democracy has long been forecast. It now seems to be upon us.
If you’re still catching up on what AfD represents, here’s a sampling: the forced “remigration” of non-ethnic-German citizens to their countries of origin; banning the Pride flag; exalting German history before the two world wars and downplaying its Nazi past; cracking down on “anti-German” art, including the Bauhaus, in an echo of the Nazi assault on modern art.
Calling AfD a “far-right” party hardly does it justice.
Before the AI Hack of Hugging Face …
A swarm of rogue OpenAI agents hijacked a German website in May and transformed it into a bulletin board for other AI agents, but OpenAI kept it under wraps as it grappled with the fallout from the separate Hugging Face hack in July, Reuters reports.
Absurdity of the Day
President Trump spent the Labor Day weekend as an online troll obsessed with changing the name of New Mexico to New America, with numerous posts like this one:
Can we NOT pretend this is a "game of chicken" between the Supreme Court and Trump. They want what he wants, to make certain the Democrats do NOT win the midterms under any circumstances. I completely expect them to say fine, whatever, in an "emergency order" with no underlying reasoning so that if/when the Democrats do elect a President they can immediately go back and say, "well this President can't do it because our reasoning on this case is totally different from under Trump and NO we WON'T tell you our reasoning in either. Too bad, so sad."
As Prof Hasen and many other constitutional lawyers have pointed out, the "harm and equity" argument supporting the district-court injunctions so grossly favor the states — and more so as Election Day grows
closer — that Scotus would be hard-pressed indeed to issue a stay, allowing the USPS FUBAR to stagger ahead.
But — always the "but" — one cannot say with any resolute assurance the Court far-right majority won't do a solid for trump, "Purcell" be damned.