He had, of course, just enumerated several “investigative dangers.”
The Biden campaign’s legal team spent the summer gaming out every possible scenario for how Trump could challenge a losing election result. Some of his top advisers were veterans of the voting wars. His longtime aide, Ron Klain, was Gore’s lead strategist during the Florida recount. Bob Bauer, a senior adviser on the team, served on the 2014 voting panel and was Obama’s top lawyer in 2008, when the F.B.I.’s ACORN investigations hit.
At the time, Bauer denounced Republican attempts “to draw the law enforcement process into their attack politics” and called for a special-counsel investigation. In 2020, he was facing a worst-case — and, he still thought, unlikely — scenario involving a Republican president drawing a quasi-military force and extralegal process into his attack politics.
Over the summer, Trump ordered tactical agents at the Department of Homeland Security to combat protesters and rioters in Seattle, Portland, Chicago and Washington. The agents were attached to D.H.S. subsidiaries, including Bortac, the Border Patrol’s SWAT-unit equivalent. They wore neither badges nor insignia as they attacked protesting citizens with chemical agents and even pulled some into unmarked vans.
Biden had been warning for months that Trump would seek to “steal this election,” as he put it in June. Among the campaign’s prospective scenarios was one in which Trump declared that the threat of fraud was so grave that he had to send military-style troops to polling stations. The legal odds were against it. The Posse Comitatus Act generally prohibits using the military for domestic law enforcement. The Voting Rights Act has strict prohibitions against voter intimidation. And the U.S. criminal code allows troops at polls only to counter “armed enemies of the United States.” The question, as Bauer saw it, was whether Trump might try to use a flimsy legal justification for a Department of Homeland Security voting-day deployment. “We’re planning for every nutty thing they can try to do,” Bauer told me.
Roger Stone, newly free of his own legal concerns, provided one such possible justification in an interview in September with the conspiracy-monger Alex Jones: “If someone will study the president’s authority in the Insurrection Act and his ability to impose martial law if there’s widespread cheating,” Stone said, “he will have the authority to arrest Mark Zuckerberg, to arrest Tim Cook, to arrest the Clintons, to arrest anybody else who can be proven to be involved in illegal activity.” The government had once used the Insurrection Act to deploy federal troops to protect Black students arriving at newly desegregated schools and to protect newly freed formerly enslaved Black citizens from Ku Klux Klan attacks during Reconstruction. Now, Stone said, Trump could invoke it to protect all voters from fraud. “The ballots in Nevada on election night should be seized by federal marshals and taken from the state — they are completely corrupted,” he said, arguing that the entire Nevada vote would be fraudulent because the state had approved a plan to send ballots to all voting-age citizens and “they are already flooded with illegals.” In any other year, under any other president, Stone’s rhetoric on an internet-based conspiracy show could be dismissed out of hand. But he had the president’s ear, and the attorney general had intervened in his favor only months earlier.
Barr will be the one to provide Trump with any legal justification, and his rhetoric indicated that he was amenable. “He’s got a choice to make here,” Bauer told me in late September. “Is he actually, beyond his rhetoric, going to support completely unsustainable legal actions, which are going to fail but are going to have a lot to say about how his legacy is viewed by history?” Bauer just wasn’t sure how much of the authoritarian rhetoric was only for show, perhaps in a bid to scare Democrats and depress their vote. In a sense, he said, taking it too seriously could play into Trump’s hands, giving air to Trump’s “wholesale rhetorical assault on the Democratic process.” Nonetheless, Bauer said, the campaign had pre-emptive options to head any extralegal moves off in court, which he declined to share in detail. Bauer believed that in parroting some of Trump’s more outlandish rhetoric, Barr had already undercut the government’s standing before the federal bench.
Barr does have the right to dispatch line attorneys to help monitor polling stations. The Department of Justice has done that regularly since the passage of the Voting Rights Act to make sure jurisdictions complied with it. Trump had his own campaign lawyers ready to bring those challenges, too. Had the Kobach commission finished its work, any lawyers working on Trump’s behalf would have had a huge database from which to make claims — claims that, if recent history had been a guide, would have collapsed in court over time. But in contested elections, charges only need to hold up for long enough. As it happened, Adams’s group had created a private version of that database at PILF, covering 42 states.