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We don’t need to catalog the politicization of law enforcement by the Biden-Harris Justice Department — the list is long and well-known. However, if Congress has given the federal government jurisdiction to enforce a statutory crime, and if there is no constitutional defect in the statute, then no state can prevent the Department of Justice from enforcing it within that state. Period.
Reportedly, Texas and Missouri objected to the sending of Justice Department monitors to various electoral districts in the state. Fox News’ David Spunt reports that the Texas dispute seems to have been resolved by the agreement of the parties, while the Missouri federal judge (former President Trump’s son-in-law) has denied the state’s application for restraining the order of the DOJ.
In my mind, the DOJ cannot impose a monitor unless there is a valid reason for a federal investigation. Again, this is a highly politicized Justice Department. It was not under Attorney General Merrick Garland and the leader of the radical left Civil Rights Division, Kirsten Clarke, to attack the red states in order to suggest that the government of the Republic-controlled state violates the civil rights of minority voters, rather than to investigate based on real evidence generating a reasonable suspicion of illegality.
But he said, states do not have the power to tell the federal government what it can investigate, and the states are prohibited by the supremacy clause of the Constitution from obstructing federal enforcement of violations of federal law.
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In Section 241 of the federal criminal code (to take the most important example), Congress has created a felony offense:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District to freely exercise or enjoy any right or privilege secured by the Constitution or laws of that State. United States, or because he has exercised the same (.)
These civil rights crimes have been on the books since the post-Civil War era. It specifically targeted the Ku Klux Klan’s forced repression of Black Americans to prevent them from voting in the South.
Special Counsel Jack Smith comments on the recently unsealed indictment against former President Trump at the Department of Justice on August 1, 2023, in Washington, DC (Alex Wong/Getty Images)
Over time, as inevitably happens, the statute has been stretched by federal prosecutors. For example, Biden-Harris special counsel Jack Smith invoked §241 to accuse former President Donald Trump in the J6 indictment, which is related to the conspiracy to undermine the 2020 presidential election. The theory of the Department of Justice is that, by challenging the results of popular elections in contested states , based on Smith’s claims of voting irregularities that Trump knew were fraudulent, the former president conspired to harm Americans in the country by exercising their right to vote.
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In my mind, Smith’s theory in the Trump case goes beyond the limits of absurdity. However, it does provide a useful example of the Justice Department’s interpretation of §241. Federal prosecutors see it as a broad mandate to protect voters from interference.
Of course, this does not mean that the DOJ should use civil rights laws as a pretext for investigating without hard evidence. If the federal government has evidence of a conspiracy to interfere with the vote, it should work with law enforcement agencies in the affected states.
But for the moment, that is more of a political dispute than a legal one. States have no authority to prevent the DOJ from investigating potential violations of federal law; and no individual has the right to challenge the Justice Department’s oversight unless and until the individual is charged with a crime based on bad evidence.
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There are exceptions. Just as states do not have the authority to prevent the DOJ from conducting an investigation, the federal government does not have the authority to interfere with the administration of state elections. According to the constitution, the administration is primarily the responsibility of the state.
Attorney General Merrick Garland speaks to staff on his first day at the Department of Justice in Washington, DC, on March 11, 2021. (Getty Images)
As a result, if the state has evidence that DOJ oversight, in some material way, impedes the state’s ability to ensure free and fair elections, or if DOJ violates state law in a way that is not necessary for federal good faith enforcement. law, the state has to ask the food to stop – and, if it can’t, have to ask the court to get the Justice Department to stop.
There seems to have been a federal-state agreement, resolving the dispute in Texas. The Department of Justice has agreed that monitors will stay away (more than 100 feet) from polling and counting center locations and will not interfere with voters trying to exercise their franchise — although voters can talk to federal monitors if they choose. perform. Texas has thus dropped the request for court intervention.
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That’s how these disputes should be resolved — although, again, the DOJ should only monitor if there’s a real reason to monitor. Absent strong evidence of voter interference, there is no reason to believe that Texas and Missouri will not provide fair elections.
However, for a state to prevail in court, there must be evidence of actual federal interference in state functions. If the state’s real beef is just federal officials attacking it, that’s not a valid legal complaint…although it might be a valid political complaint.
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