Is DOJ Doing Enough to Protect the Election?

There is a lot of concern about whether the Justice Department is doing enough to protect our election. Answering that question turns on understanding what their role is.

DOJ is charged with detecting, investigating, and pursuing violations of federal civil and criminal laws related to voting. But they are simultaneously charged with doing it in a way that doesn’t influence the outcome of elections. As you can imagine, that makes for a rather tenuous balancing act.

The reason that policy exists makes quick intuitive sense if you think back to the role Donald Trump wanted the Justice Department to play in the 2020 election—he wanted officials there to say that they were investigating voter fraud, so he would have a springboard he could use to challenge Joe Biden’s win. That, in a nutshell, is precisely what you don’t want the Justice Department to do if we’re going to remain a functioning democracy. It’s not their job to influence the outcome of this or any election. But at the same time, they’re responsible for taking steps to protect the election and Americans’ right to vote and have their ballots counted.

With that background in mind, the DOJ has been doing some remarkably important work this election season. It hasn’t received the media attention it should have, so people are largely unaware of it. But it’s still fair to question whether, in the twisted election environment Donald Trump has created, it’s enough. How far do you go to address Trump’s corruption of democracy without damaging democracy itself? Trump is good, whether intentionally or not, at setting up this paradox.

Ultimately, the election itself will be the final answer to the question of whether DOJ, supplemented by others litigating election issues, has been aggressive enough. But there is reason for cautious optimism. DOJ’s work pre-election, along with recent decisions by courts across the country that have consistently rejected MAGA efforts to disenfranchise voters—I’m planning a round up of those cases for you tomorrow night if I can finish reading all of the decisions in time—has resulted in significant steps to reinforce the election.

Election Threats Task Force

In June of 2021, DOJ launched an Election Threats Task Force as the lead entity charged with ensuring that election workers, whether they’re elected, appointed, or volunteers, can carry out their work without being subject to threats or intimidation. That is, of course, new. That sort of conduct towards people conducting our elections was virtually unheard of before Trump. Now, it is sadly commonplace, although, after some initial resignations, Americans have responded by committing to work the election. Maine’s Secretary of State Shenna Bellows commented on what this means in practice: “Our election officials across the country are excellent and really committed to this work. It’s devastating that I have to train our local election clerks in threat analysis and reporting and de-escalation. But that’s the new reality.”

Criminal Prosecutions

Thursday afternoon, as I was writing this piece, DOJ announced “developments” in four criminal prosecutions brought by the task force. The cases involve threats made to election personnel and others, some stemming from the last election cycle:

• A Colorado man pled guilty Thursday to threatening a Colorado election official and making threats to an Arizona election official, a Colorado state judge, and federal law enforcement agents between September 2021 and July 2024.

• An Alabama man was sentenced on Monday to 30 months in prison for threatening Arizona election workers during and immediately following the 2022 primaries.

• A Florida man was charged on Monday for threatening a state election official in February. The new charges are on top of a case involving three victims and approximately one hundred threats.

• A Pennsylvania man was charged on Monday with threatening to kill a representative of a Pennsylvania state political party who was recruiting official poll watchers in September.

Releases like this can play an important role in deterring other people from making threats, but only if they get widespread coverage in the press. The penalties are significant. The Florida man, for instance, faces a maximum sentence of 15 years if he’s convicted on all counts. And the conduct is disturbing. Imagine opening up your email only to find this, sent in the Florida case.

The Deputy Attorney General, Lisa Monaco had this to say: “Threats to election workers are threats to our democratic process. No one should face violence or threats of violence simply for doing their job. The actions announced today make clear that we will not tolerate those who use or threaten violence in an effort to undermine our democratic institutions. To carry out their essential work, election officials must be free from improper influence, physical threats, and other forms of intimidation.”

Four cases may not sound like a lot, but these aren’t easy cases to bring. Even if the FBI investigates every threat that is reported, they may not be able to identify a suspect in every case or develop sufficient admissible evidence to indict, even if they believe they know who is responsible. The cases here are significant ones involving multiple threats or multiple victims and suggest DOJ is serious about prosecuting these cases.

Community Engagement

It’s not just criminal cases. DOJ plays an important role during voting and especially on the day of the election, handling complaints ranging from violations of voting rights to threats of violence against election workers to election fraud. Each of the 94 U.S. Attorneys’ Offices spread out across the country has a District Election Officer (DEO) who is the point person for handling issues that crop up on election day. I can tell you from experience that these folks are trained and take the job seriously. Although it’s a usual practice to have these people on board, there seems to be new urgency and a heightened level of coordination with Washington this year, a practical recognition of the challenges we may face.

Foreign Election Interference

DOJ is also working with the intelligence community to combat foreign interference in the election. In September, DOJ launched a prosecution against Iranian officials who hacked the Trump campaign, and seized internet domains used by Russian government actors to spread disinformation in the United States. Today, the Office of the Director of National Intelligence issued another clear warning about the threat we face: “Foreign actors — particularly Russia, Iran, and China — remain intent on fanning divisive narratives to divide Americans and undermine Americans’ confidence in the U.S. democratic system consistent with what they perceive to be in their interests, even as their tactics continue to evolve.”

Civil Enforcement Actions

DOJ has also, and unusually given its reticence to bring new cases too close to the election, filed lawsuits in Alabama, where a court has already ruled in its favor, and Virginia, challenging state officials’ decision to remove people who are registered to vote from the voter rolls because of fears these registered voters might not be citizens. DOJ is on solid footing here—both states violated clear provisions of the National Voter Registration Act that prohibit these removals once we are closer than 90 days to the election. The lawsuits act as a warning that DOJ means business this election cycle.

That’s what a lot of this activity is about. It’s impossible for DOJ, despite its size, to be everywhere all at once. But it can engage in impact prosecutions and litigation to create deterrence and engage with communities proactively so they know where to turn for help if voting rights are being supressed. DOJ-bashing has become a popular sport in the wake of the slow start DOJ got off to when it came to prosecuting Donald Trump. You can be, and I have been, critical of that delay. But when it comes to the election, DOJ is showing preparation for what’s to come, election day itself, and what’s likely to be the most dangerous period for democracy between the election and the time a winner is determined, while at the same time stepping in to prosecute threats and use civil lawsuits to force states into compliance with the law. All of that is refreshing evidence of the rule of law at work.

Elon Musk and Potential Vote Buying

Finally, there is Elon Musk’s announcement that he would be awarding a million dollars a day to one person who “signed his petition” in Pennsylvania. After several days of only “no comment” from DOJ when asked if they were opening an investigation, there was a report Thursday that DOJ sent Musk a written notice that the payments may violate federal law. The initial report came from reporter Tom LoBianco and was later confirmed by CNN.

While some dismissed this as just “a sternly written letter,” it’s more than that. The law that prohibits vote-buying “does so in broad terms,” as DOJ’s election crimes manual, a Bible of sorts for federal prosecutors handling these matters, details. It goes on to say that, “covering any payment made or offered to a would-be voter ‘for registering to vote or for voting’ in an election when the name of a federal candidate appears on the ballot. Section 10307(c) applies as long as a pattern of vote-buying exposes a federal election to potential corruption, even though it cannot be shown that the threat materialized.” The Justice Department has put Musk on notice that if he continues to make these payments through his America PAC, he is violating the law, which makes it difficult to muster a defense if he continues to make the payments. Most people would stop engaging in illegal conduct when directly confronted like this. Musk is on notice that if he continues, he may well face prosecution. Although it’s likely that wouldn’t occur until after the election, simply given the evidence DOJ would have to put together and the timing of getting it before a grand jury, leaving aside concerns about taking steps like this so close to an election, this news sends an important message too.

The lack of public fanfare with which DOJ approaches its work can be frustrating for the public. I’ll take a moment to reiterate a concern I have, and that I’ve written about in the Yale Law Journal, in this regard. DOJ cannot and should not publicly discuss ongoing investigations and cases. But that doesn’t mean it can’t do more to educate the public about the scope of its mission and the process it uses to accomplish it. The Justice Department needs to add educating the public about the way it does its work as an explicit part of its role in government.

DOJ tries its cases in courtrooms, where the rules of evidence and other due process protections for defendants exist. It does not and should not try them in the public square. But while DOJ can’t talk about the substance of those cases, they could do more to explain the process they use. They could do more to educate the public about why they don’t talk about cases while they’re in progress. It’s this sort of civic education about how democracy works that is so needed at this moment. “U.S. Attorneys’ Offices can take steps to restore normalcy by engaging more transparently with their communities and being willing to explain their work,” I wrote in my essay. More explicit, public, and repeated discussions by key DOJ personnel could still happen in the ten days before the election. Explaining the mission and the work they have done and continue to do would go a long way towards both encouraging the public to have confidence in the election and deterring would-be criminals. We’ve given them a head start by laying out some of the work they’ve been doing. There shouldn’t be any question about DOJ’s commitment to a free and fair election. But of course, in the time of Trump, everything is up for grabs, and we all have to do more to protect democracy.

We’re in this together,

Joyce