This Is Not a Drill … Repeat … NOT a Drill
The Trump administration has launched a full-blown attack on the midterm elections in California. It’s the very thing that everyone has been worrying that Trump would do for more than a year and yet … it doesn’t feel like the totality of what’s happening has really sunk in or embedded itself in the national political conversation as we sit here 12 days out from the end of voting.
To recap for those just joining us, the Trump administration has used the false pretext of rampant noncitizen voting to:
gin up criminal prosecutions nationwide against noncitizens for alleged voting-related crimes, with a special focus on California, where it rolled out a bunch of dubious new charges with high-profile arrests and official press conferences two weeks before the election;
sue California to force it to segregate and not count mail-in ballots from alleged noncitizen voters until it undertakes some new, uncertain, and open-ended investigation into whether the voters are citizens;
send federal agents door-to-door looking for noncitizen voters in what is at best a fishing expedition and at worst a campaign to terrorize and instill fear in potential voters in minority communities.
All of this happening — and I cannot emphasize it enough — while universal mail-in voting is already underway in California.
The various ways in which the Trump administration spent the past several months trying to monkey with the midterms — asserting unprecedented federal control over state-run federal elections, attempting to use the Postal Service to throttle mail-in ballot delivery, demanding access to voter rolls and individual voter information; marshaling federal databases in a purported effort to ferret out noncitizen voters; among other things — was merely a prelude to its open attack on the midterms now ongoing in California.
The breadth and persistence of those earlier efforts by the administration has probably dulled the senses a bit and made it harder to distinguish what it happening now as a more serious and immediate threat to free and fair elections. The other complicating factor is that the fight to fend off the administration’s attack in California stretches from coast to coast, making it harder for reporters to cover it as a single unified story and for the public to grasp the various tendrils.
There’s a major civil lawsuit underway in California and two separate important lawsuits in D.C. Plus the myriad criminal cases in California, which won’t be decided until after the election. At the same time, federal grand jury subpoenas are still outstanding that demand voter information from California election officials. And amidst all of that the Trump DOJ continues to actively threaten California election officials with prosecution if they don’t capitulate to administration demands.
None of this is normal.
None of this is how the Justice Department behaved in the run up to past elections — quite the opposite.
None of this is how to run an election.
Drilling Down Into the Details
I hope you’re still with me!
Above is the high level view of the battlefield. If you only take away that broad impression, it’s all good.
But of course, I want to dig down into all the specifics and give you updates on each front in this battle so you know exactly what you need to follow this closely. I’ll still try to keep it manageable in these next few items.
More Threats From the Trump DOJ
I hadn’t zeroed in on this until yesterday, but in the litigation between the Trump DOJ and California, it emerged that acting Deputy Attorney General Trent McCotter, the No. 2 official, sent another letter last Friday containing an array of new threats against California election officials:
The legal consequences for either facilitating or ignoring a federal crime are significant. Noncitizen voting in a federal election is a federal crime—and knowingly facilitating such conduct is equally unlawful. Under 18 U.S.C. § 611(a), noncitizens are prohibited from voting in any election involving federal offices. Under 18 USC. § 2, anyone who aids, abets, ‘counsels, induces, or procures the commission of a federal offense is equally liable. If persons: knowingly tabulate ballots cast by individuals identified by federal agencies as noncitizens, they risk becoming aiders and abettors: to a federal crime.
…
Administrative difficulty is not a defense to violating federal law or aiding or abetting a federal offense.
The Department strongly urges the County and the SOS to reconsider their positions before taking actions that risk significant federal scrutiny and legal exposure.
As California subsequently told a court, election officials are being asked to conduct the midterm elections under the threat of criminal prosecution from the federal government.
DOJ Is Running Out of Time
In the main case in California, where the Trump DOJ is suing to force California to segregate and not count mail-in ballots from alleged noncitizen voters, both sides are seeking quick rulings.
The Trump DOJ wants a TRO issued by noon PT today.
For now, the federal judge has set a hearing on the Trump DOJ’s TRO request for next Tuesday, Oct. 27. (The judge set this hearing before the Trump DOJ asked for a ruling by noon today.)
California and its election officials want a hearing on their motion to dismiss the federal case no later than Oct. 30 so they can count ballots unfettered.
With voting ending in 12 days, the timeframes are tight under every scenario. But they’re slightly tighter for the Trump DOJ, assuming it wants to get this case to the Supreme Court in an emergency posture before Election Day, a fair assumption.
Meanwhile, in D.C. Federal Court …
U.S. District Judge James Boasberg is overseeing two separate but related cases that are challenging more broadly aspects of the Trump administration’s attack on the midterm elections. As of yesterday, Judge Boasberg put one of those cases on an expedited pre-election timeline similar to the California case. The other case, just filed on Tuesday, isn’t moving as quickly yet, but it may.
I’m sparing you details on these cases until they ripen a bit more.
Judge Halts DHS Voter Fraud Ops
In yet another case, a federal judge in California blocked DHS from carrying out field operations focused on uncovering voter fraud in California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin. The order is to remain in place until the polls close on Nov. 3.
The judge was most concerned with U.S. citizens getting swept up in and being intimidated by the DHS field ops, so she blocked ops when they are “likely to involve” people who DHS agents “know, suspect, or should reasonably know or suspect are U.S. citizens.”
That leaves some wiggle room for DHS to exploit.
The judge’s ruling came the same day that CBS News reported that armed and uniformed DHS agents have have been knocking on doors in several states to ask residents about their immigration status, in an operation that ramped up beginning in September.
“[T]he public’s interest in safe elections, free from interference or intimidation, far exceed Defendants’ purported interest in combating unlawful voting by non-U.S. citizens,” U.S. District Judge Araceli Martínez-Olguin wrote.
A Final Point
While the California battlefront is the most urgent and pressing threat to the midterms, I would still assess as low the Trump administration’s chances of ultimately prevailing in court. But that doesn’t mean it can’t win. And even more importantly, the fight itself is part of the point and is doing real damage right now by actually interfering in an ongoing election.
Third Country Removal Update
Updates on a couple of the most egregious third country removals that I’ve mentioned over the last couple of months:
Ghana/Togo/Nigeria: A federal judge in California has confirmed that a wrongfully deported Nigerian national is back in the United States after she ordered the Trump administration to facilitate his return. Etinosa Osahon — who was legally barred from being deported to Nigeria because he had already been tortured twice there and was at risk of future torture — was wrongfully deported in May to Ghana, which promptly attempted to transfer him to Nigeria. He refused to continue on the overland journey and was dumped en route in Togo, where he had remained in hiding.
Equatorial Guinea: A federal judge in Arizona who ordered the Trump administration on Oct. 6 to facilitate the return of an Egyptian national who had been deported to Equatorial Guinea ratcheted up the pressure on the administration to act more quickly to abide by his original order. The new order comes after Gillian Brockell reported that an ICE deportation flight was scheduled to arrive in Equatorial Guinea today but still not retrieve Ahmed Soliman, whose health is reportedly rapidly deteriorating.
The Retribution: Free Press Edition
Two new developments in the Trump White House’s attack on a free press:
In a retaliatory move, the Trump White House removed Andrew Feinberg, the reporter whom it derided earlier this week as a “Mongoloid moron,” from the out-of-town print pool for President Trump’s trip to Iowa today.
In an extraordinary letter, a White House lawyer demanded that Politico retract a series of palace intrigue stories on Chief of Staff Susie Wiles, concluding his letter with this not-at-all-veiled retaliatory threat:
I therefore demand that Politico immediately correct or retract these publications, issue a prominent and public apology to the President of the United States and to Ms. Wiles, and remove the false reporting from your digital archives. Failure to do so or otherwise respond justifying Politico’s publications within 48 hours will prompt an immediate review of Politico’s relationship with the White House, and, of course, consideration of all other appropriate and available legal remedies.
Hegseth Broke Eisenhower’s Globe
The WaPo, with a metaphor for our time: Hegseth wanted Eisenhower’s globe for his office. His staff broke it.