It was disclosed last week that FBI Director Kash Patel had diverted 260 analysts from crime fighting to review Fulton County’s 2020 presidential election records. What could possibly justify such a “priority project”?
According to its own affidavit, the FBI is acting on allegations that are not only time-barred by the statute of limitations but have been thoroughly debunked by the Georgia Bureau of Investigation, the U.S. Attorney’s Office, the secretary of state and the FBI itself.
Many people say the administration’s real goal is to intimidate Democrats before the midterms, even if it means bringing bogus indictments before the election. There’s plenty of evidence to support that idea, and I discuss other ways election deniers hope to misuse state and local election data in my new book, “Stealing Elections, American Style.” But there is one particular way Fulton’s records are likely to be misused that we need to be especially wary of.
President Donald Trump’s last-ditch effort to remain president after the 2020 election was to have Republicans in Congress “investigate” the elections in swing states he lost, like Georgia; proclaim that fabricated allegations of fraud were true; and then award those states’ electoral votes to Trump.
As Trump told Acting Attorney General Jeffrey Rosen when he tried to enlist him in the conspiracy, “Just say the election is corrupt and leave the rest to me and the Republican Congressmen.”
Midterms are more vulnerable to attack than in 2020
Credit: Diwang Valdez
Credit: Diwang Valdez
We’ll never know how many Republicans in Congress would have voted to reject those states’ election returns and switch their electoral votes to Trump were it not for the Jan. 6, 2021, assault on Congress. That attack alienated some members from Trump’s cause, albeit only temporarily, but 127 Republicans still voted that same day to “reexamine” Arizona’s election (Arizona was the first of the targeted states that came up for a vote).
A danger for the midterms is that Trump and other Republicans could try something patterned after that 2020 scheme. If an election for Congress is disputed, the Constitution makes the House and Senate the ultimate “Judge of the Elections (and) Returns … of its own Members” — not the courts and not state election officials.
There have been hundreds of congressional election contests in the country’s history, nearly all of them inconsequential. But if Republicans are about to lose their congressional majorities in November, would a desperate Trump take a page from his 2020 playbook and try to have Congress decide election winners? Just as he did in 2020, he is already setting the stage by accusing Democrats of vote fraud — his false allegations of fraud in California’s primary election being one example.
Unfortunately, the midterms are much more vulnerable to an attack like this than the 2020 election was. In 2020, Trump tried to get the Department of Justice to file baseless lawsuits and seize election machinery to give Republicans in Congress “cover” to change the electoral vote count.
That didn’t happen only because Rosen and others refused to go along, but those men have all been replaced by people who are loyal to Trump, not the law.
Scheme to deny fair results once seemed unimaginable
With acting Attorney General Todd Blanche and Kash Patel running the Justice Department, it is easy to see the FBI and the election deniers who stock the DOJ saying there is fraud in selected places to justify claiming that the outcome of an election is uncertain and should be decided by Congress.
If that time comes, Fulton County’s 2020 records will play a prominent role. The FBI under Patel can be expected to use old, bogus allegations to say its “review” of Fulton County’s records “reveal fraud” that makes Georgia’s current vote count unreliable, all to justify putting a close Georgia Senate election in the hands of the Republican-controlled Senate itself.
Even worse, if preliminary election results are going bad for Republicans on Election Day, Trump could order the FBI to seize election equipment from a few Democratic precincts, in Fulton County or anywhere there is a close election, before the state has finished counting ballots or certified its returns. That could prevent states from even declaring a winner, giving the House and Senate a justification to act. Is that a real risk? Just a few months ago, Trump reiterated that he regrets not ordering the National Guard to seize voting machines in 2020.
In 2020, people couldn’t foresee a scheme to create fake electors, override state election returns and use Congress to reallocate electoral votes. It was too preposterous to imagine. But what was unimaginable in 2020 was attempted, and it would be naive to assume something like that couldn’t happen again, especially because key officials in the current administration have shown no qualms about using the power of the government for corrupt partisan purposes.
David F. Walbert, an Atlantan, is a constitutional and voting-rights litigator with multiple Supreme Court arguments and congressional testimony on the Voting Rights Act. Bloomsbury publishes his book on this subject, “Stealing Elections, American Style,” in September.
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