By Justin Glawe|Zeteo
Photos: Wikimedia Commons
For decades, it has been the policy of the Justice Department to avoid seizing evidence or arresting people involved with election fraud during an election. That has now apparently changed, according to Democrats, who are warning that Donald Trump could use the Justice Department to seize ballots and arrest election officials on or immediately after Election Day in November.
The warning comes in a lawsuit filed last month by the Democratic National Committee that seeks communications and records from the Justice Department about ballot seizures and arrests under the Freedom of Information Act. Democrats say that the Justice Department has done away with policy guidance advising against ballot seizures and arrests during an ongoing election – evidence that the agency is actively planning to seize ballots and arrest election officials.
Democrats also point to the administration’s own words and actions regarding the troubling and unprecedented scenario that Trump will seize ballots in November.
In January, Trump said he wished he’d seized voting machines in the wake of his loss in 2020. In recent months, administration officials like Homeland Security Secretary Markwayne Mullin have threatened to arrest state and local election officials. Meanwhile, the Justice Department has sent letters to all 50 states warning election officials that they’ll be arrested for not purging voters that the Trump administration says are ineligible to vote.
All of it is part of Trump’s sweeping efforts to cause Americans to distrust the results of November’s midterms – efforts that Democrats who are wargaming to defend the elections say are nothing short of election interference, as Zeteo previously reported in our ‘Start the Steal’ series.
The latest alarms from Democrats come as the Justice Department and the Department of Homeland Security ramp up claims of widespread voting by noncitizens, which studies have shown occurs so infrequently that it has had no measurable impact on any past elections. Since the start of the Trump administration, the Justice Department has arrested about 170 people for voting in federal elections. While touting the arrests, the Justice Department said it’s looking into an additional 1,600 potential cases of noncitizen voting. Mullin, meanwhile, claims his agency is looking into 300,000 potential noncitizen voting cases.
Even if there were 300,000 votes cast by noncitizens in federal elections since 2020, it would amount to .07% of the roughly 406 million votes cast in those contests.
Through its threats to withhold funding, arrest election officials, and amplify unfounded claims of widespread voting by noncitizens, the Trump administration’s efforts to raise doubt about the midterms have been obvious, but the extent of its coordination with local election deniers remains unclear.
On Monday, the Georgia State Election Board, which has a majority of election-denying Republicans, passed a legally dubious resolution demanding that the DOJ and DHS be granted access to the state’s voting machines and election equipment.
“The purpose of the resolution is to seek support from federal partners,” Republican board member Carolyn Roddy said.
The Homeland Security Department did not respond to questions about its involvement in election interference in Georgia and elsewhere, but said the agency is “actively rooting out and investigating election fraud wherever it can be found.”
“We have repeatedly demonstrated that aliens can and do vote in our elections,” the agency said in a statement. “Under President Trump, [DHS] is committed to restoring integrity to our election systems and ensuring that American citizens and only American citizens are electing American leaders.
Even before the latest arrests, Democrats warned that Trump could seize ballots and other election materials, which would interrupt vote-counting and certification of results necessary to determine which candidates win in November.
“These preemptive threats suggest that federal law enforcement may have already opened initial assessments, laying the groundwork for potential seizures of election materials prior to certification of the 2026 midterm election,” DNC attorneys wrote in the Aug. 20 lawsuit.
Threats to arrest election officials, Trump’s wistful remembrance of plans to seize voting machines, missing Justice Department guidance on election-related investigations, and overblown and outright false claims of widespread voting by noncitizens all have Democrats convinced that Trump and his underlings at the DOJ are planning a historic coup in November to ensure that Republicans win an election they’re on pace to lose.
“The DNC is taking the Trump administration to court to defend the integrity of our elections, inform the public, and prepare a legal response to any attempt to seize voting systems or lawfully cast ballots,” DNC litigation director Dan Freeman told Zeteo in a statement. “Any effort to seize live ballots would fundamentally undermine our democracy and deny voters their First Amendment right to make their voices heard.”
On Monday, the Justice Department filed a response to the lawsuit, asking the court to dismiss it entirely. Responding for the Justice Department, Assistant U.S. Attorney Devin Iorio, a 2024 graduate of American University’s Washington College of Law, wrote that none of the information in the DNC’s complaint was pertinent to its request for information related to ballot seizures.
Reached for comment, Iorio, whose filing was co-signed by U.S. Attorney Jeanine Pirro, did not address the removal of guidance on Justice Department interference from its website that was laid out by the DNC. Iorio, who told Zeteo he has been in his position for less than a month, otherwise declined to comment on his response or say whether the DOJ is actively planning to seize ballots. “I don’t mean to be rude, but I do believe I’m going to have to refer you to the response itself because that’s office policy,” he said.
Meanwhile, Senate Democrats have warned Mullin and DHS to stop interfering with states targeted by what the Trump administration has called the “Unlawful Voter Initiative.”
“As Secretary of Homeland Security, you have promoted the president’s conspiracy theories about our elections, pressured states to participate in illegal activities, and explicitly threatened to reduce grant funding and initiate criminal investigations for those states that do not comply with the administration’s demands,” the senators wrote in a letter on Monday, urging him to cease doing so.
Search Warrants for Ballots
In January, the FBI seized ballots from Fulton County despite the fact that the Justice Department was scheduled to receive copies of those ballots and other records from the 2020 election. Instead, the FBI simply took the ballots themselves.
It was the first time in American history that the federal government had taken ballots from local election officials, and the move sent shockwaves through election offices run by both Democrats and Republicans across the country. Prior to the raid, a magistrate judge approved an FBI warrant allowing agents to seize the ballots, based on claims a federal judge later called “misleading” and “troubling.” Now, Democrats worry that judges might approve similar warrants in November.
But judges shouldn’t even be in such a position, according to the DNC lawsuit. That’s because it’s been longstanding policy that the Justice Department avoid seizing records like ballots or arresting officials suspected of election crimes while an election is ongoing, according to agency guidance titled “Federal Prosecution of Election Offenses.”
The guidance stipulates that “election-related documents” like ballots “should not be taken from the custody of local election administrators until the election to which they pertain has been certified.”
In recent months, the Justice Department removed the Federal Prosecution of Elections Offenses guidelines from its website, the DNC notes in its lawsuit. At the same time, according to Assistant Attorney General Harmeet Dhillon, 300 lawyers working for the agency’s Civil Rights Division have resigned amid the division’s efforts to prove Trump’s false claims of election fraud.
The DOJ’s policy of not seizing records in an ongoing election is also laid out in the agency’s Justice Manual, which stipulates that the Justice Department should avoid “overt” measures like seizing ballots “until the election in question has been concluded.”
But under Trump, the Justice Department can no longer be trusted to follow longstanding laws or guidance, comply with court orders, or avoid unprecedented actions like seizing ballots in an ongoing election, Democrats say. Across the country, judges have chastised Justice Department lawyers for acting in bad faith and outright “unlawful” behavior, and effectively working as the White House’s retribution arm.
In hundreds of cases, judges have criticized lawyers for the Justice Department and DHS for unscrupulous practices as part of Trump’s efforts to punish his political enemies, and his administration’s draconian immigration policies. Those cases include an infamous example in Minneapolis, where, during last winter’s ICE operations there, Justice Department lawyers demanded immediate approval for a warrant to arrest protesters who had entered a church. The agency said the protesters – who were accompanied by journalist Don Lemon, who was later arrested – represented a “national-security emergency.” The judge in the case called the claim “frivolous.”
The DNC says the Minneapolis case was an example of “aggressive positions with respect to warrant applications and grand jury subpoenas,” warning that Justice Department lawyers could make similar claims in November, and demand that judges sign off on warrants allowing for ballot seizures.
Indeed, making frivolous national security claims has been a feature of the second Trump administration. Trump has used “national security” to justify everything from deploying the National Guard to Los Angeles during ICE protests last year, to his obliteration of the East Wing of the White House to construct a ballroom, to, most recently, barring reporters from the White House.
As the circle around Trump grows tighter with only sycophants to advise him, he is being pressured to formally declare a national emergency to try to suspend the November midterm elections, something he does not have the power to do. Asked by Time whether he would rule out declaring a state of emergency in the lead-up to the midterms, Trump responded: “I don’t rule anything out or in. We’ll see.”
Even if Trump doesn’t make a legally questionable declaration of a national emergency to interfere in November, the Justice Department can do significant damage to the elections by asking judges to approve search warrants to seize ballots, as it did in Fulton County in January.
Democrats and public officials in counties that have been targeted by Trump over election fraud claims have been wargaming for months under the assumption that he’ll claim fraud in those locations in November. Those claims are likely to focus on major cities in swing states, like Atlanta and Detroit, where Trump has made false fraud claims for years.
“I am deeply concerned about efforts by this administration to undermine confidence in our elections, including any potential plans to seize ballots during or immediately after Americans have voted,” Senator Gary Peters (D-Mich.) told Zeteo in a statement. “In the rare instances when election fraud occurs, it should be investigated and prosecuted consistent with the law. But any attempt by the administration to seize ballots and undermine the chain of custody would raise serious legal and constitutional concerns.”
UCLA election law professor Rick Hasen has warned that seizing ballots would “cause irreparable harm by breaking the chain of custody and tainting election results,” as he wrote in a guide for judges who may have to determine whether to issue election-related search warrants in November.
Hasen wrote that the first thing judges will have to consider is whether the Justice Department has sufficient probable cause that a crime has occurred.
“If the government starts filing stuff all over the country, in each case the answer from a judge is going to be, ‘What information do you have?’” says Diane Wood, a retired U.S. circuit judge who works with the Article III Coalition of the non-partisan organization Keep Our Republic, which advocates for the independence of the judiciary. “You can’t just say, ‘We’ve heard there was fraud.’ There’s a whole process for testing the validity of the allegations in an affidavit.”
The FBI affidavit in Fulton County was based on already disproven allegations of fraud in the 2020 election. The judge in that case probably should not have approved the warrant, Wood told Zeteo.
“I think the magistrate judge in this case was told who it was that was asking for the warrant, and was given enough detail that the judge thought it was OK,” Wood said. “We don’t babysit [the FBI] for every last warrant.”
In Riverside County, California, a political ally of Sheriff Chad Bianco issued warrants allowing him to seize 650,000 ballots from an election regarding congressional redistricting. The state’s supreme court ordered Bianco last week to return the ballots and abandon his investigation.
Even asking for search warrants for ballots could reduce many Americans’ trust in the election results. Getting the ballots themselves could prevent states from certifying results. Some Democrats also worry that Trump’s Justice Department would simply manipulate seized ballots to concoct false evidence of widespread fraud.
Sara Tindal Ghazal, the lone Democratic member of the Georgia State Election Board, said the disruption of chain-of-custody in the case of the ballots seized from Fulton County could mean that Democrats would have no way to fact-check future possible claims of fraud from the FBI.
“If they assert that documents are missing, who’s to say who lost them? Once you just blow off the chain of custody and take presumably everything you can’t demonstrate anything in the context that election contests normally have,” Tindal Ghazal told Zeteo. “All our procedures for arguing about election materials presume a good faith attempt to maintain a chain of custody.”
If Trump seizes ballots in November, it could prevent states from certifying results –“and even alter an election’s ultimate outcome,” according to Hasen. With ballots seized and states unable to count them or certify results, Republicans who have been elected to the House of Representatives could use this as a basis to challenge the election of Democrats.
A Lack of Evidence
In early July, the Justice Department threatened to arrest election officials in every state if they “knowingly” allow noncitizens to register to vote. At the same time, the Justice Department and Homeland Security have repeatedly failed to show that noncitizens have voted in any meaningful numbers so that it would actually affect the outcome of an election.
A week after the threat letter to election officials in all 50 states, Trump gave a primetime address to the nation in which he falsely claimed his administration had finally uncovered proof of fraud in the 2020 election. Since then, DOJ and DHS have directed significant resources to investigating extremely rare instances of voting by noncitizens.
Hundreds of agents from both agencies have been directed by the White House to scour voter data from all 50 states in an attempt to identify as many cases of noncitizen voting as possible.
Under Dhillon’s leadership, the Justice Department has also preemptively threatened lawsuits against 29 states and Washington, DC, telling top election officials to retain records from their voting systems.
Since Sept. 18, the Justice Department has arrested 26 people across the country for allegedly illegally voting in federal elections. U.S. Attorney General Todd Blanche and DHS chief Mullin say they’re actively investigating more than 1,600 cases of alleged voting by noncitizens nationwide, part of 300,000 possible cases, the two claim. All told, the Justice Department has charged fewer than 200 noncitizens with voting crimes since Trump took office.
But the arrests outlined by the DOJ were mostly of lawful permanent residents – not undocumented immigrants – meaning that those who were arrested could have unwittingly voted in an election in which they thought they were allowed to vote, a Georgia election official told Zeteo. Following Trump’s primetime speech in July, DHS claimed it had found 2,500 noncitizens on Georgia voter rolls. It turns out those voters were in “pending” status, according to Secretary of State Brad Raffensperger, a Republican, meaning that they were not actually registered to vote.
Last week, federal prosecutors in Atlanta announced charges against three people who had illegally voted as noncitizens in presidential elections going back to 2020. That year alone, roughly 5 million Georgians voted in the presidential election. A 2024 audit found 20 noncitizens registered to vote throughout the state.
As Mullin, Dhillon, and others have lodged and amplified claims of noncitizen voting, they’ve failed to prove those claims in big ways. In Nevada, DHS claimed it had found 185 noncitizens registered to vote on the state’s voter rolls, only to have state election officials point out that all 185 people were citizens.
