Federal subpoenas to election officials mark escalating Trump pressure campaign

As the Trump administration waged a public legal fight with California over the ballots of suspected noncitizen voters in mid-October, behind the scenes a federal grand jury in Santa Ana issued a series of subpoenas to election officials in Los Angeles County at federal prosecutors’ urging.

The subpoenas demanded a host of information, from how officials responded to warnings that the Trump administration had identified 20,000 suspected noncitizen voters to how they screen for unlawful voting. Among the demands: any records suggesting “someone has aided and/or abetted an alien voting in a federal election.”

As President Donald Trump’s administration loses round after round in federal court in his quest for authority over state-run elections, the U.S. Department of Justice is turning to criminal investigations as a way to dig deep into documents and records held by election officials. 

Democrats, election officials and legal experts warn the subpoenas are intended to intimidate in the absence of favorable court decisions for the president.

“The mask is off now. There’s clearly no legitimate law enforcement purpose here with regards to the service of these subpoenas, the ongoing litigation,” David Becker, executive director of the nonpartisan Center for Election Innovation & Research and a former DOJ Voting Section attorney, said during a press call Friday. “This is all a political effort at this point, and it’s an effort by what appears to be a desperate administration to interfere with the election.”

The Justice Department sued California on Oct. 15, two days after informing state and local officials that the U.S. Department of Homeland Security had identified 20,000 suspected noncitizens on the state’s voter roll. The DOJ demanded California set aside the ballots of the 20,000 voters and not count their votes unless they can prove their citizenship.

A federal grand jury issued two subpoenas to the Los Angeles County Registrar-Recorder/County Clerk’s office on Oct. 21. A third subpoena was issued on Oct. 24.

An Oct. 24 Justice Department letter accompanying at least one of the subpoenas says they were “issued in connection with an official criminal investigation” conducted by Homeland Security Investigations, a sub-agency of DHS. Los Angeles County officials must provide the information by Nov. 4, the day after Election Day, according to the subpoenas.

States Newsroom obtained the subpoenas through a records request. The New York Times first reported on their existence.

Focus on election officials

A grand jury subpoena represents an intermediate investigative step by the Justice Department. They aren’t as aggressive as a search warrant, but unlike a voluntary request for an interview or documents, they require mandatory compliance, though recipients can challenge them in court. It isn’t clear whether Los Angeles County intends to challenge the subpoenas.

Subpoenas to election officials are not in and of themselves unheard of. State and federal prosecutors sometimes use them to obtain information on voters who may be under investigation for unlawfully casting a ballot or registering to vote.

For instance, lawyers for California Secretary of State Shirley Weber, a Democrat, wrote in a mid-October court filing that her office has received federal grand jury subpoenas for voter records on about 300 people since August.

A Reuters investigation published Wednesday found that the Trump administration has issued more than 100 subpoenas for records on thousands of voters across 13 states. Most were issued within the past three months, and 49 were issued under the authority of grand juries. They arrived after Homeland Security arrested dozens of people across the country on allegations of noncitizen voting.

But recent subpoenas in Alaska and California appear more focused on how election officials are doing their jobs than on data about specific voters.

In Alaska, The Associated Press reported Thursday that grand jury subpoenas were issued in a Justice Department criminal investigation into the state’s U.S. Senate race. Trump has erupted in anger after The New York Times reported Democrats helped recruit Dan J. Sullivan — who shares a name with Republican Sen. Dan Sullivan — to run for Senate. Sen. Sullivan appears locked in a tight race with Democrat Mary Peltola.

In California, subpoenas issued to Los Angeles County officials don’t specify the target of the investigation but the information requested suggests prosecutors are interested in internal discussions over the handling of the list of suspected noncitizens. They direct officials to turn over records related to efforts to prevent noncitizen voting and any evidence that noncitizens have voted.

They also include a demand for evidence of aiding and abetting noncitizen voting — the same language that Bill Essayli, first assistant U.S. attorney for the Central District of California, used during a court hearing Tuesday. 

Threats of prosecution

Essayli warned election officials face “criminal liability” if they aid and abet noncitizen voting by counting their ballots. In turn, U.S. District Court Judge David Carter, an appointee of President Bill Clinton, urged the Justice Department to drop threats against election officials.

“Judge Carter’s admonishment about threats directed at election officials on Tuesday was well placed and appreciated. At every step, the U.S. Department of Justice has taken a confrontational, adversarial approach,” Los Angeles County Registrar-Recorder/County Clerk Dean Logan said in a statement.

Election officials are following state and federal law, Logan said, adding that rulings at the district and appeals court levels have confirmed they are acting legally. He said his office will take whatever steps are necessary to ensure employee safety and to remain focused on serving voters.

“Threats and intimidation have no place in elections,” Logan said.

In a statement, the Justice Department declined to comment on “leaks about alleged grand jury subpoenas.” 

But the DOJ noted a ruling by Carter that emphasized the federal government’s power to prosecute noncitizen voting, as well as court filings by California that say prosecutors have authority to bring criminal cases over noncitizen voting. 

“Thus, while DOJ maintains that a civil remedy is still available, all agree that noncitizen voting is properly addressed through criminal law,” the DOJ said in a statement.

Carter also denied the DOJ’s request for an emergency order and wrote that the Trump administration was engaging in election interference.

Several unions and civil rights groups sued the administration late Thursday over the prosecution threats. In a lawsuit filed Thursday in U.S. District Court for the Northern District of California, the organizations asked a judge to order federal officials to stop “threatening election officials and workers” with prosecution for refusing to segregate ballots of suspected noncitizens.

The lawsuit says the Trump administration has “initiated a criminal investigation into county officials including issuing grand jury subpoenas.”

California has also questioned the reliability of the data the Trump administration used to develop the list of 20,000 voters. The DOJ says Homeland Security analyzed a public copy of the state’s voter roll and compared voter records to government immigration records and included the use of the LexisNexis research service.

Federal courts ruled against the Justice Department three times in late October.

The 9th U.S. Circuit Court of Appeals ruled against a preemptive appeal on Oct. 26, and Carter denied the DOJ’s request for an emergency order on Oct. 28. The 9th Circuit on Oct. 30 denied a fresh appeal.

Red states enter fray

Eleven Republican-led states have urged federal courts to grant the Justice Department’s demand that California segregate the ballots. In an amicus brief, the states say they have a direct interest in preventing the dilution of the votes of U.S. citizens in other states.

“The Constitution permits substantial differences among state election laws and procedures. But Congress’s prohibition on noncitizen voting in federal elections supplies a common rule that every State must respect,” the states, led by Republican Florida Attorney General James Uthmeier, wrote in their brief.

The other states include Alabama, Arkansas, Iowa, Kansas, Montana, Nebraska, South Carolina, South Dakota, Texas and West Virginia.

In Washington state, election officials received a Justice Department demand Monday to segregate the ballots of about 400 suspected noncitizen voters. Washington Secretary of State Steve Hobbs, a Democrat, said in a statement that a preliminary investigation found the list includes U.S. citizens.

As of Friday morning, the Justice Department hadn’t sued Washington. However, a DOJ letter sent to Hobbs warned the Trump administration would seek “emergency relief” if election officials didn’t comply.

“We are bound by state law,” Thurston County, Washington, Auditor Mary Hall, a Democrat who runs elections for the Olympia area, told reporters on Wednesday. “And state law really does not give us the authority to do what the federal government is asking us to do.”