The Trump administration is taking steps to enable unprecedented, strategic federal intervention in the upcoming midterm elections. Earlier this year, the Department of Justice executed a search warrant for state election records in Fulton County, Georgia – the largest county in the state, and a critical jurisdiction for determining statewide election results. The DOJ, flanked by Director of National Intelligence Tulsi Gabbard, seized hundreds of boxes of materials from the 2020 election, including original physical ballots, ballot images, tabulator tapes, and voter-roll records. In March, the DOJ issued a subpoena as part of a criminal investigation into the 2020 election in Arizona, demanding images of ballots related to the Arizona legislative chamber’s partisan “audit.” In April, the DOJ demanded “all ballots” from the 2024 election in Wayne County, Michigan, referencing suspected fraud. In May, the FBI began interviewing current and former election officials in Milwaukee, Wisconsin, as part of a criminal investigation into the 2020 election. And in June, the U.S. Attorney’s Office in Los Angeles, California, announced that it had opened “multiple election fraud investigations” related to California’s elections, allegedly based on delays in ballot counting. All of these actions appear to be in service of President Donald Trump’s unfounded claims of election fraud.
These investigative steps – highly unusual by historical DOJ standards – may preview what is to come as the midterms approach. For the first time, the country faces the possibility that the DOJ may attempt to take over polling places, seize ballots during an election, or threaten to prosecute voters or election officials to interfere in the administration of an election. But federal agents cannot seize a state’s ballots or voting equipment without a judge approving a search warrant. With DOJ’s internal rules against election interference seemingly discarded, the magistrate judge who reviews and signs off on the government’s warrant has become the last meaningful check before a federal investigation can disrupt an election.
This is a sharp reversal. For decades, the DOJ saw its role in elections as protecting the right to vote and investigating allegations of fraud after the fact – not inserting itself into how states administer their elections. The administration has set that posture aside, abandoning the longstanding election-year policies that once kept federal investigations from influencing a vote before it was counted and certified. It has done so by disregarding the constitutional limits, statutes, and internal DOJ policies that constrained federal involvement in state election administration, and by dismantling the offices built to apply these laws and policies in investigations that could impact an election. These investigations will put novel and consequential questions before the courts. DOJ’s push to seize state election records will require judges to weigh unsettled issues of constitutional interpretation, the application of federal election statutes, and consideration of state-specific chain-of-custody laws and regulations for election materials, often on a compressed timeline. And they will have to do so without the careful internal vetting the DOJ once provided, which historically flagged when investigative steps broke with the Department’s own election-year sensitivities or non-interference policies. With those internal checks gone, judicial review is the safeguard that remains.
When the government seeks a warrant for election records or equipment in the period leading up to, during, or immediately after an election, a magistrate judge has every reason to apply heightened scrutiny: to ask whether the seizure is truly necessary, whether less intrusive means would serve the public’s interest, and whether approving a warrant without limiting the means of execution to copying and/or inspection would strip election officials of materials they need to count votes and certify results. To support that review, the Edley Center on Law & Democracy at U.C. Berkeley Law School worked with a team of nonpartisan legal and election administration experts to create new guidance for magistrate judges to reference when confronted with search warrant applications for election materials.
The Fulton County search provides a compelling example, albeit in the less sensitive context of federal seizure of election records from a past election that has been certified and no longer remains under legal contest. In January 2026, the FBI seized roughly 656 boxes from the county’s elections offices, the only copy of its 2020 ballots, together with tabulator tapes, ballot images, and voter rolls. The supporting affidavit rested largely on previously debunked claims of fraud and identified no concrete evidence of criminal conduct. A magistrate judge nonetheless approved the warrant. When the county sought return of the records, the court declined, and the materials remain in federal custody. The episode shows what is at stake in a magistrate’s review of a warrant; it was the only point at which seizure could have been stopped, and once the warrant was issued, the county had no effective means of recovering its records.
The search sets a dangerous precedent that seeks to normalize a tactic the DOJ has long treated as off-limits: seizing elections records in a way that could affect, or appear to affect, the election itself. Deployed while early or mail-in voting is underway, on election day, or immediately following an election, federal seizure of election materials could cause significant delays in certifying election results, break the chain of custody for ballots and equipment, invalidate targeted elections, and manufacture the doubt needed to challenge or overturn results. Any such federal interference threatens to jeopardize the United States’ fundamental democratic tradition of free and fair elections.
DOJ’s Traditional Restraint in Election Investigations
The DOJ’s recent initiation of multiple apparently unfounded criminal election crime investigations into past and ongoing elections — deliberately designed to cast doubt on tabulations and lay the groundwork for contests — is a radical departure from historical DOJ enforcement. In the context of election crimes, the DOJ has historically recognized that its role is one of prosecution, not intervention, as the federal government “plays a role secondary to that of the states in election matters.” DOJ traditionally observed policies, regulations, and laws that minimized the likelihood that a federal investigation itself could become a factor in an election. DOJ’s manual on prosecuting election offenses, “Federal Prosecutions of Election Offenses,” Eighth Edition, December 2017, specifically recognizes that
seizure by federal authorities of documentation generated by the election process may deprive state election and judicial authorities of critical materials needed to resolve election disputes, conduct recounts, and certify the ultimate winners. Accordingly, it was the general policy of DOJ not to conduct overt investigations, including interviews with individual voters, until after the outcome of the election allegedly affected by the fraud is certified.
Because of the heightened sensitivities around campaigns and elections, DOJ delegated supervision over the enforcement of all criminal investigations of election crimes to PIN’s Election Crimes Branch, except for those alleging voter intimidation and voter suppression on the grounds of race, color, religion, or national origin, which were handled by DOJ’s Civil Rights Division. Since PIN’s creation as part of post-Watergate reforms in 1976, it has been deliberately staffed by career attorneys, including the Deputy Assistant Attorney General (“DAAG”) overseeing PIN. DAAG positions are generally filled by political appointees, but PIN’s DAAG was maintained as a career position to further insulate PIN from political influence given the recognition that PIN’s investigations and prosecutions often involved elected officials and elections. Because of the numerous sensitivities involved in investigating election-related matters, and to ensure adherence to national standards, DOJ required all federal prosecutors and agents across the country to consult with a PIN attorney before initiating an election crime investigation.
If agents and prosecutors at a local U.S. Attorney’s Office believed there was sufficient evidence that an election crime had occurred in their district, the local Assistant U.S. Attorney (“AUSA”) and FBI case agent’s first call was to PIN. PIN’s oversight ensured that election crime investigations and prosecutions were handled uniformly across the country, regardless of the state or county where the alleged crimes occurred or the partisan affiliation of the precinct or purported wrongdoers.
If PIN authorized the opening of a full election-related investigation, the local AUSAs collaborated and consulted with PIN to decide when to take significant overt steps in the investigation, including issuing subpoenas or seeking a search warrant. DOJ historically abided by the federal regulations directing that a search warrant “should not be used” unless less intrusive means “would substantially jeopardize the availability or usefulness of the materials sought.” This included exercising heightened caution in searches that could implicate core constitutional concerns, including the First and Sixth Amendments. Indeed, the Election Crimes Manual makes explicit that when seeking election materials as part of an investigation, “election officials should not be deprived of documents necessary to tally and recount the ballots and to certify the election results. Accordingly, copies in lieu of originals should be accepted until the state’s need for the documentation expires.”
The federal search warrant executed in Fulton County appears to be the first time the DOJ has ever seized state election records over the objection of state election officials. Previously, in the rare situations where actual ballots or other voting records were needed in a criminal investigation, the DOJ worked cooperatively with state election officials or used “friendly subpoenas” to obtain temporary custody of the necessary records—well after the election at issue was complete, certified, and all contests were concluded. In the Fulton County example, DOJ’s deliberate decision to unnecessarily compel state election records pursuant to a deeply flawed investigation directly led to presentation of a search warrant application to a magistrate judge who was likely unaware of the extreme departure from historical DOJ policy that the timing and substance of the search warrant represented, and who was misled by “troubling” omissions in the affidavit. .
The Eradication of DOJ’s Election Expertise
Judges now bear the responsibility to apply heightened scrutiny to these cases because the DOJ has dismantled the expertise that once kept election investigations in check. As recently as 2024, there were almost 40 attorneys in DOJ’s Public Integrity Section (“PIN”), including eight assigned to the Section’s Election Crimes Branch during midterm and presidential election years. There were roughly 12 agents assigned to the FBI’s elite public corruption squad that formed part of the Washington Field Office and nearly a dozen more staffing the Public Corruption Unit at FBI headquarters responsible for the nationwide Election Crime Coordinator program and the National Election Command Post. These were the people who screened election investigations and kept them within established bounds. Today, these specialized divisions exist only on paper, if at all.
The dismantling has been systemic. Trump’s DOJ has suspended PIN’s authority with respect to election investigations, stripped PIN of its ability to file new cases, and effectively shut down PIN’s Election Crimes Branch outright. Previously mandatory election-year training for FBI special agents and Assistant U.S. Attorneys has been canceled and the National Election Command Post – the Department’s election-day coordination center – appears to be in jeopardy because there is no one qualified left to staff it. The administration has also fired or forced out hundreds of career prosecutors at U.S. Attorney’s Offices across the country, including many of the District Election Officers and other Assistant U.S. Attorneys with specialized experience handling public corruption and election-related investigations. The same is true at local FBI offices where many senior agents with experience in public corruption and election investigations, including Election Crime Coordinators, have been fired or forced to retire early.
Guidance for Judges to Apply Heightened Scrutiny
Because the DOJ has discarded internal reviews and checks on investigations impacting elections, magistrate judges are likely to be presented with novel factual and legal scenarios involving election matters. Judges, like all professionals, receive regular training and education on developments in the law, legal practice, and technology. When novel and technical issues arise, it is important for the judiciary to have the necessary substantive and technical knowledge about a subject to interpret and apply the law to the new context. To assist judges in the review and consideration of criminal process targeting elections,the Edley Center on Law & Democracy has posted a set of election information materials. These materials include an overview of election-specific considerations when reviewing search warrant applications and a summary of when judges may request amicus briefing on a legal issue pertinent to the proposed search.
Magistrate judges should apply heightened scrutiny to applications for search warrants for state or local election records or equipment leading up to, during, and in the immediate aftermath of an election. This is not a call for judges to second-guess legitimate investigations. But as the legal authorities compiled and provided by the Edley Center indicate, federal search warrants, if issued at all during the period of an election or the ensuing contest or certification period, should be narrowly limited to permit only inspection, reproduction, or copying of election materials and should explicitly prohibit depriving state and local election officials of custody and control of these materials. Doing otherwise breaks the chain of custody for ballots and voting equipment, generates uncertainty and skepticism regarding election results, and may enable politicized federal invalidation of targeted elections in violation of the U.S. Constitution, the country’s laws, and its defining democratic traditions.
