ANDREW McCARTHY: Biden-Harris Justice Department tangles with red states on Election Day

We needn’t catalog the instances of politicization of law enforcement by the Biden-Harris Justice Department – the list is long and notorious. Nevertheless, if Congress has given the federal government jurisdiction to enforce a statutory crime, and if there is no constitutional infirmity in the statute, then no state may prevent the Justice Department from enforcing it in the state’s territory. Period.

Reportedly, Texas and Missouri have objected to the Justice Department’s dispatching of monitors to various election precincts in those states. Fox News’ David Spunt reports that the Texas dispute appears to have been resolved by agreement of the parties, while a Missouri federal judge (an appointee of former President Trump) has denied the state’s application for a restraining order against DOJ.

To my mind, it is reprehensible for DOJ to deploy monitors unless there are plausible grounds for a federal investigation. Again, this is a highly politicized Justice Department. It is not beneath Attorney General Merrick Garland and his radical leftist Civil Rights Division chief, Kirsten Clarke, to saber-rattle in red states in order to suggest that Republican-controlled state governments are violating the civil rights of minority voters, rather than to investigate based on actual evidence yielding a reasonable suspicion of illegality.

But that said, the states have no power to tell the federal government what it may investigate, and the states are barred by the Constitution’s supremacy clause from obstructing federal enforcement of possible offenses of federal law.

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In Section 241 of the federal penal code (to take the most salient example), Congress has made it a felony violation:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same[.]

This civil rights crime has been on the books since the post-Civil War era. It specifically targeted the Ku Klux Klan’s forcible oppression of Black Americans to prevent them from voting in the South.

Over time, as inevitably happens, the statute has been stretched by federal prosecutors. For example, Biden-Harris special counsel Jack Smith has invoked §241 to charge former President Donald Trump in the so-called J6 indictment, involving alleged conspiracies to corrupt the 2020 presidential election. The Justice Department’s theory is that, by challenging the popular election result in contested states, based on claims of voting irregularities that Smith alleges Trump knew were fraudulent, the former president conspired to injure Americans in those states in exercising their right to vote. 

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To my mind, Smith’s theory in the Trump case is overreach bordering on the absurd. Nonetheless, it makes for 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, that doesn’t mean DOJ should use the civil rights laws as a pretext for investigating in the absence of hard proof. If the federal government has evidence of conspiracies to interfere with voting, it should be working cooperatively with law enforcement agencies in the affected states.

But for the moment, that is more a political dispute than a legal one. States have no authority to prevent DOJ from investigating potential violations of federal law; and no individual has a right to challenge Justice Department monitors unless and until that individual is charged with a crime based on flimsy evidence.

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There is an exception. Just as the states have no authority to prevent DOJ from conducting investigations, the federal government has no authority to interfere with the states’ administration of elections. Constitutionally speaking, such administration is principally a state responsibility.

Attorney General Merrick Garland addresses staff on his first day at the Department of Justice in Washington, D.C., on March 11, 2021. (Getty Images)

As a result, if a state has evidence that DOJ monitors, in some material way, are impeding the state’s ability to ensure a free and fair election, or that DOJ is violating state law in a manner unnecessary to the good-faith enforcement of federal law, that state should ask the feds to stand down – and, if that doesn’t work, should ask a court to order the Justice Department to stand down.

There seems to have been a federal-state agreement, resolving the dispute in Texas. The Justice Department has agreed that its monitors will remain a respectful distance (over 100 feet) from polling and central count locations and will not interfere with voters as they attempt to exercise the franchise – although voters may speak with the federal monitors if they choose to do so. Texas has thus dropped its request for court intervention.

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That is how such disputes should be resolved – although, again, DOJ should only be monitoring if there is a real reason for monitoring. Absent hard evidence of interference with voters, there is no reason to believe Texas and Missouri will not provide a fair election.

Still, for a state to prevail in court, there would have to be evidence of real federal interference in a state function. If a state’s real beef is that the mere presence of federal officials is offensive, that is not a valid legal complaint … though it may be a very valid political complaint.

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