Why the Tulsi Gabbard Election Raid Is Scarier Than Initially Thought |
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The past month has seen a barrage of election subversion stories that, taken individually, were alarming, but viewed together reveal a deeply disturbing new playbook emanating from the Trump administration ahead of the midterms. On this week’s Amicus podcast, Dahlia Lithwick talked with election law gladiator Marc Elias, chair of Elias Law Group and founder of Democracy Docket. Their discussion, edited and condensed for clarity here, highlights a very clear pattern when it comes to Trump and voting: a project that seeks to normalize violence and to test drive the shattering of how elections are typically run. The work of the coming nine months? Keep a close eye on the encroaching lawlessness, don’t normalize election subversion, and organize now to protect your friends and neighbors.
Dahlia Lithwick: When Steve Bannon pledged last week that ICE is going to “surround the polls”—that the federal government is going to send Immigration and Customs Enforcement officers to patrol polling stations during the midterms—is he trolling, or something we should be taking literally and seriously?
Marc Elias: I don’t think he’s trolling us, I think he’s quite serious. I think Donald Trump wants to maintain optionality here. Trump has put federal paramilitary forces in a number of American cities. Everyone’s focused on Minneapolis, but let’s be clear, it’s not only Minneapolis. Part of it is because he obviously has an anti-immigrant agenda he wants to pursue, but he also wants to normalize the idea of seeing people with flash-bang grenades and tear gas breaking windows and dragging people out of cars, and telling U.S. citizens that they’re being put in databases, and grabbing U.S. citizens and throwing them in the back of vans. Trump wants to normalize all of that because that has a number of side benefits, none so great as potentially using those same forces and same tactics around the midterm elections—not to go after noncitizens, and not even specifically focused on being right around polling places, but just more generally making it more intimidating to vote, making it more inconvenient to get to polling locations, and in its most extreme form, yes, surrounding polling locations and intimidating people or preventing voting altogether.
So I guess the follow-up is just my lawyerly question, which is: Of course it’s not lawful to deploy federal troops or armed federal law enforcement to polling places. The Brennan Center is very clear—it’s a crime for anyone in the military to interfere with elections. So doesn’t this discussion begin and end with the fact that you just can’t?
It doesn’t, for two reasons. First of all, we began the administration with people thinking, Oh my God, what if he puts the military at the polls? And I think Donald Trump has figured out that he’s better off with paramilitary forces than the actual U.S. military. The military may be too disciplined and too principled to do what he wants here, so he’s found other federal law enforcement personnel and agencies willing to do his dirty work. We’ve seen that progression between L.A.—where we saw the National Guard deployed—and now Minneapolis, where we’ve seen ICE and Border Patrol.
More fundamentally, though, what you have is a president who himself enjoys absolute immunity and will wield the pardon power, and that makes saying something is “illegal” a lot less of a credible threat. When you also have a Department of Justice that would never prevent them from doing those things, and in fact would go to court to enable those things … it doesn’t take law off the table, and I never want people to think that the courts are not able to address some of these things, because I think, in fact, the courts have proven the most capable of being checks on Donald Trump. I can promise you lawyers like me will be in court, and we will fight against this, and we may very well win, but it doesn’t mean that he won’t try or that he won’t actually get cooperation from his own administration to do these things.
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Also last week, President Trump said the time has come to “nationalize elections.” Can you talk us through what lies beneath that threat? Is there some tangible plan he’s referencing, or is this just another one of his I want what I want and I want it now, and I want these 15 Democratic jurisdictions to be monitored by me.
I think a couple of things here are important. The first is that when he says he wants to “nationalize” the elections, I fear some people think that he’s talking about something like uniform standards across the country, some terrible but nevertheless uniform application of voting standards that would apply in Alabama equally as they would apply in, say, New York.
But if you look at the broader quote, he’s making false claims about people coming to the country illegally to vote, and then he says, “It’s amazing that the Republicans aren’t tougher on it. The Republicans should say, ‘We want to take over, we should take over the voting.’ The voting in at least many, 15 places. The Republicans ought to nationalize the voting.” So I want to be clear, he’s not talking about nationalizing election administration. He is talking about Republicans taking over the voting, and then identifying that there would be specific jurisdictions in which they would take over that voting. We can assume that those 15 would grow to be beyond 15, and that it would be places with large concentrations of Democratic votes. He’s talking about a partisan takeover, not a federal-versus-state takeover.
The second thing is, I think that the big lie that he is selling in 2026 is his own power regarding these elections. What he’s really doing in this statement is he’s suggesting that the president has powers over elections that he doesn’t have. What we’re seeing is a progression and an escalation. I want everyone to go back in their heads and remember that 2020 didn’t start with a violent insurrection of the nation’s Capitol, it actually started with Donald Trump before the election, well before the election, saying that we can’t have all these mail-in ballots, right? He was railing against mail-in ballots, and then there was litigation before the election about mail-in voting, and in-person voting, and all kinds of stuff, and many in the traditional legacy media treated that as if it was the normal jockeying before elections, and people like me and you were saying, “No! This is actually not normal, this is actually quite extraordinary!”
Then Donald Trump loses the election, and he files not one lawsuit, but he and his allies file 64 lawsuits—which, again, completely not normal! If you go back, maybe in the totality of Bush v. Gore, with all of the subsidiary little issues, maybe there were a dozen cases? But that was one state involving a very, very close margin, decided by the Supreme Court. In 2020, this was a scattershot approach with a lot of bullshit legal theories. And when that didn’t work, he escalated. This is the pivot point that people sometimes look past. On Dec. 19, 2020, after the Electoral College met, the state of Texas filed a petition directly in the U.S. Supreme Court. You know how unusual that is? Texas didn’t go to the trial courts, it just went straight to the U.S. Supreme Court and said, We need you to throw out the election results in four states. This is unheard of. Mike Johnson, who is now the speaker of the House but was at that point a back-bencher, organized 126 Republican members of Congress to sign onto that brief as an amicus. That became a major pivot point, because it was as much a political organizing as it was a legal organizing, and it winds up building up to House Republicans trying to refuse to certify the election Jan. 6, and then the violence and the insurrection we saw on Jan. 6.
That was the progression in 2020. As we look today, we’re seeing the beginnings of the same progression: Donald Trump, first attacking voting, his Department of Justice bringing litigation, which they are losing. Now you see the seizing of ballots in Georgia, and you start to see the rhetoric from Steve Bannon about surrounding the polls. This is the progression that Trump goes through, and I think everyone needs to be really worried.
You just mentioned the FBI search of a warehouse in Fulton County, Georgia, last week, which followed persistent demands from the president, claiming without evidence that fraud cost him Georgia. They used the opportunity to seize almost 700 boxes of 2020 election documents, all in the presence of Tulsi Gabbard, director of national intelligence, who was on the scene for that raid. Can you explain why it’s a big deal, having the DNI present for an FBI raid in Georgia?
Yes, and there’s another fact that has been way too much overlooked: The prosecutor who sought this search warrant is in Missouri; this was not out of the U.S. Attorney’s Office in Georgia. From reporting, it appears this U.S. attorney out of a district in Missouri has jurisdiction not only over the 2020 Fulton County matter (to the extent that it is a matter), but also some kind of nationwide jurisdiction over all election “things.”
When you take in his involvement and you take in Gabbard’s involvement, I think you need to recast this as not simply election nihilism about 2020, and not only as a fight about nostalgia—which would still be terrible, unprecedented, and dangerous—but that would be one thing. I think this raid is about proof of concept for the future. People are talking about seizing ballots and surrounding polling places and stealing elections as if somehow these things are easily done. These are conceptual frameworks that people in the administration have to get comfortable with; these are moral frameworks they have to get comfortable with. They have to contend with the Constitution and the law and judges and all that, but they also have to contend with just the sheer logistics of it all: How do we actually do this thing where there are ballots in the possession of a county official? And how are we going to get them, and how are we going to then count them in a way that is going to cast doubt on the outcome, or cast doubt on the outcome through other propaganda and disinformation campaigns? This Georgia raid is just as much about all that as it is about 2020.
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Donald Trump and his administration actually managed to pull something off here. They actually did seize ballots, they actually got their hands on them. People can say “Oh, they had the wrong warrant and they had to go back,” but at the end of the day, Tulsi Gabbard was on a truck full of documents seized from an office, and those are now in the possession of the FBI and presumably a grand jury by this prosecutor from Missouri. That should be terrifying. In terms of alarm bells, this is off the charts. They faced a challenge in 2020 and were humiliated in how to subvert the outcome of an election, and Donald Trump told the New York Times that he wished he had seized the ballots in 2020. They have now shown they have a proof of concept, that they know logistically how to do this—including getting a federal magistrate judge to sign a warrant. That is not a small matter, that is a safeguard put in place to prevent the abuse of grand juries, the abuse of subpoenas, and the abuse of arrest warrants. They got through that process, and that is a learning exercise that they will use going forward to 2026, and it is the thing that I probably worry the most about.
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