By all indications, the midterm elections should produce a massive blue wave, unless of course Trump and his thugs manage to steal it. How likely is he to succeed?
I put the question to one of America’s most thoughtful and public-minded experts on the subject, retired federal district judge Nancy Gertner, who now teaches at Harvard Law School. Judge Gertner was a lead organizer last year, along with retired circuit court judge Michael Luttig, a conservative, of more than 150 former judges who sent a letter rebuking then-Attorney General Pam Bondi for her attacks on the judiciary.
In late May of this year, Judge Gertner once again teamed up with Luttig, and organized some 35 former jurists to sign a motion urging Judge Kathleen Williams to reopen her provisional approval of a sweetheart deal in which Trump got immunity from IRS claims in exchange for the now-defunct “Anti-Weaponization Fund.” The motion called the deal a fraud on the court. On July 15, Judge Williams voided the $1.8 billion settlement between President Donald Trump and the IRS, ruling that the underlying lawsuit was a collusive exercise in bad faith designed to manipulate the judicial process.
What follows is a lightly edited transcript.
Robert Kuttner: Which of the possible strategies that the Trump administration is likely to pursue to undermine the election are you most concerned about? Much of the remedy boils down to what the courts will do, whether the courts will act in a timely fashion, and whether the Supreme Court will do its usual slow roll.
Nancy Gertner: To overgeneralize somewhat, there are three buckets here. One is what they’re doing in advance of the elections, the other would be what they were doing after the elections, and the third would be what they do during the elections. What I most worry about is what they do during the election.
For instance, suppose they send in ICE to intimidate voters, or the FBI to seize ballots; or suppose they try and harass election officials, like they did in some red counties last time. In principle, you have federal district judges standing by to issue injunctions, but they might not be able to act in time.
There are rules within each election jurisdiction about what people can or can’t do near the polling place. Assuming an ICE agent tries to pull someone out of line or otherwise tries to intimidate voters, arguably there are rules in each of the states. Local DAs can even arrest and bring charges against federal officials. To be sure, as Hennepin County [Minnesota] has shown, it is not easy to do, and it will require a district attorney with some guts.
And not likely in red states.
In general, things that are happening on Election Day are the most difficult things for a court to respond to; the intimidation will take place before you can get to court and before a judge can act.
Suppose the FBI comes in and seizes ballots.
That is the worst scenario of all. In principle, the FBI would need a judge to sign off on that seizure. But if they seize without a warrant, they could basically taint the election.
Can that illegal behavior by the FBI be enjoined in advance?
Not unless there’s a policy that we know of in advance. That’s the problem.
So a citizen can’t go into court and say, there’s a clear and present danger that the FBI is going to meddle with this election. Judge, please enjoin that behavior.
There has to be a basis for that. You have to hope for a whistleblower who would have some notion of what the plans are. You’d have to look to what Trump said. And yes, the more clear that Trump policy is spelled out in advance, the more you might have a basis to stop it.
What else would you put at the top of the list of things that are alarming, that would be difficult to undo in the moment?
Well, there’s a rumor that he would declare the Insurrection Act. He makes a declaration like that, and that could be challenged in a second, in court. I don’t think the Supreme Court would tolerate that.
You think the Supreme Court could act in time.
Yes, I do. I think Roberts is primed for it.
Let’s switch to the other alarming scenario currently in the news, where Trump uses the U.S. Postal Service to deliberately gum up mail-in ballots, and the administration keeps playing a cat-and-mouse game where judges keep saying, you can’t do this, and the Postal Service does it anyway. At what point does the Supreme Court have to get off the dime and decide this?
Well, they have to get off the dime now. I do not think that there are five votes to say that the post office changes are lawful.
That’s hopeful.
It’s also the case that if people seeking mail-in ballots don’t get them, they can still go to the polls. To be sure, it’ll diminish the vote, and there’ll be places in which that’s impossible to do, or difficult to do. But it may even increase voter motivation. It may be that the biggest danger here is violence at polling places.
Violence both by renegade vigilante Trumpers like on January 6, and by Trump-inspired ICE agents. Trump is perfectly capable of inspiring that violence and calling for it again.
Ordinarily, state officials and state police would be there to protect voters. So there are people talking to state DAs about what their authority is under these circumstances, and they do have authority, if they use it.
It is creepy to imagine an Election Day standoff between state or local and federal officials.
The best protection may be an overwhelming Democratic vote. The model, you might say, is Hungary. The repudiation of Orbán was so total that he stood down.
There were rumors of a deal between Magyar and Orbán, where if Magyar won overwhelmingly and Orbán didn’t fight it, Magyar would not prosecute Orbán. So far, there has been no personal prosecution, but Magyar’s government has prosecuted his corrupt allies and destroyed his machine. The analogy isn’t perfect, because Trump wants to steal the election to avoid being impeached.
That’s a whole other issue you should write about, that if the House goes blue, he will be impeached. I don’t think the Democrats should run on that, but if they do win the election the likelihood is that he will be impeached.
Unlike Orbán, if Trump’s party loses the election, he is still president for two more years, probably even crazier, and the practical question becomes how to contain him. First, there needs to be a relatively honest election. Let’s hope you are right that an outright coup would be too much even for the Roberts Court and that Trump will obey the Court.
