Bernstein: "“To be very clear, [say] the president orders troops to go to every polling place in the United States on Election Day,... that’s not a prescription for how to lose our republic, I don’t know what is.”
Trump’s legal arguments in a case challenging his deployment of troops to U.S. cities could disable laws banning the military from interfering in elections.
Paul Blumenthal. Sep 21, 2025, 08:00 AM EDT
President Donald Trump has never seen an election that he didn’t think was fixed. In each of his three runs for the presidency, he falsely claimed widespread fraud. In 2020, he tried to overturn his loss, first through the courts and then in the streets. Now back in power, and with federal troops deployed to multiple cities run by Democrats, there are mounting concerns that he could use his power as commander in chief to deploy the military during elections.
“He’d like to stop the elections in 2026 or, frankly, take control of those elections. He’ll just claim that there’s some problem with an election, and then he’s got troops on the ground that can take control if, in fact, he’s allowed to do this,” Illinois Gov. JB Pritzker, a Democrat, said in August as Trump threatened to send troops to Chicago.
California Gov. Gavin Newsom, a Democrat, noted that Trump’s recently extended the National Guard deployment in Los Angeles that began in June amid anti-ICE protests through Nov. 5, when California voters will go to the polls to vote on Democrats’ plans to redraw the state’s congressional district maps in response to Texas’ recent mid-decade gerrymander that eliminated five Democratic seats in the state.
“Interestingly, we still have federalized National Guard assigned through Election Day. Is that a coincidence? Through Election Day!” Newsom said on a Democratic National Committee call in August. “That’s a preview for the National Guard of things to come. Don’t think for a second now that ICE and Border Patrol won’t be showing up at a voting booth or polling places this November.”
“I don’t think Donald Trump wants another election,” Newsom also said in August.
Trump has entertained this idea before. When he tried to steal the 2020 election he lost to Joe Biden, Trump considered issuing an executive order directing the Department of Defense to seize voting machines. He ultimately backed off, due to extreme opposition from Cabinet officials. But in his second term, his Cabinet has been chosen first and foremost for their loyalty in carrying out Trump’s agenda: None have expressed any semblance of opposition to Trump’s worst instincts.
“I think maybe the president is thinking that he will exercise some emergency powers to protect the federal elections going forward,” Cleta Mitchell, a conservative lawyer who led the push to overturn the 2020 election result, said on a conservative podcast in August, according to a report by Democracy Docket.
Former Trump advisor Steve Bannon has called for Trump to “get these elections squared away, for once and all” and deploy ICE agents at polling places.
Another former Trump lawyer and election denialist, Peter Ticktin, told a conservative audience in August that he “wouldn’t be very surprised if we find out before the next election that there’s kind of, be an emergency called. I don’t have it on good authority that this is going to be done, but a number of people are urging it because it’s necessary.”
Using the military or any other federal law enforcement agency to interfere with elections is currently illegal under numerous federal laws. However, the Trump administration has been laying the groundwork for getting around that. In court challenges to the federal deployment of troops in Los Angeles, the Trump administration has pushed arguments that would make the laws banning federal military or law enforcement interference with elections toothless.
“That is certainly something we have to take very seriously and it is very much a matter of concern,” said Elizabeth Goitein, a military legal expert at the Brennan Center for Justice, a liberal nonprofit.
When California claimed in court that the military had violated the Posse Comitatus Act, which bars the use of the military for law enforcement, the administration argued that courts could not hear challenges to violations of that law. They advanced three reasons for this: that the president has an inherent power to protect federal functions and property, that federal courts can’t issue judgment on violations of a criminal statute like the Posse Comitatus Act and that no one but the federal government can sue to enforce a criminal statute.
“If that position were accepted broadly, it’s an invitation for the Trump administration and any administration to violate the criminal law by ordering election interference by the military,” said Richard Bernstein, an appellate lawyer focused on election issues and a former clerk for the late Justice Antonin Scalia. “If that doesn’t threaten our rule of law and democracy, what does?”
There are a number of statutes that make it a criminal felony for the military or federal officials to interfere with elections. It is a criminal offense punishable by up to five years in prison for military officers to order troops to be present at “any place where a general or special election is held” or for any military officer or National Guard member “called into federal service” to interfere with elections by preventing someone from voting or otherwise imposing election-related regulations on voters. It is similarly illegal for anyone “acting under color of law” to interfere with elections or for a federal government official, like a Cabinet official, to abet such a crime by ordering such an action.
Like the Posse Comitatus Act, these are criminal statutes. If, as the administration asks, a court rules that criminal statutes cannot be enforced by courts, or that the president has an inherent power to protect federal functions, that would effectively clear the way for federal officials or the military to interfere with elections.
So far, the only judge to hear these arguments rejected them. In Newsom v. Trump, the case related to the Posse Comitatus Act, Judge Charles Breyer rebutted all of the Trump administration’s claims regarding the president’s inherent powers and the ability of courts to hear challenges under criminal statutes, as Bernstein explained in a post for the Society for the Rule of Law, a group of conservative lawyers who oppose Trump’s lawlessness.
“It is improper” to allow the president to supersede laws passed by Congress “to grant the President a perpetual, atextual right to defy Congress if he determines it necessary to protect federal property, personnel, or functions,” Breyer wrote. “Such an exception would be limitless in principle: it would allow the President to deploy troops to accompany any federal employee whose job puts them at some risk — as do the jobs of many federal employees, from OSHA inspectors to IRS agents to U.S. marshals.”
Breyer also ruled that private plaintiffs, like states or cities, can bring and courts can hear challenges to criminal statutes.
“[W]ithout injunctive relief, California would lack any remedy against Defendants’ unlawful use of the U.S. military in a way that infringes on California’s police power and risks economic and other harms to California’s residents,”
Breyer wrote.
Importantly, for the issue of military interference in elections, Breyer notes that the historical record of the Posse Comitatus Act stands as evidence that Congress specifically meant to restrain the president’s ability to use the military domestically. Congress passed that law after President Ulysses S. Grant deployed the military to stop anti-Black election activities in former Confederate states in the 1876 election.
“The principles articulated in the decisions coming out of California would serve as important checks on the president’s ability to use the military around elections,” Goitein said.
That, of course, presumes Breyer’s ruling will be allowed to stand: The Trump administration has already appealed Breyer’s decision to the Ninth Circuit Court of Appeals where it is making the same arguments for gutting judicial review. And if the administration loses there, it will likely escalate the matter to the Supreme Court, which has been very friendly to Trump.
If a court does side with the administration there may still be “more indirect theories” that states or other plaintiffs challenging any interference by troops in elections may bring, like claiming that the action violates the Constitution’s Elections Clause, which places power of elections in the states and Congress, not the presidency.
Bernstein believes it is likely the higher courts will see the danger in Trump’s arguments and reject them, “but I’m less confident in that than I was 25 decisions ago,” noting the Supreme Court’s recent shadow docket decisions siding with Trump.
One reason to be less confident is how the Supreme Court has bought into procedural arguments brought by the Trump administration that are very similar to the arguments made in the Posse Comitatus Act case. In Trump v. CASA, the court declined to rule on the matter of Trump’s executive order stripping people of birthright citizenship and instead limited the ability of courts to impose national injunctions. And in J.G.G. v. Trump, the court afforded immigrants detained under the Alien Enemies Act with due process protections, but said their claims could only be filed as writs of habeas corpus. Both decisions altered the power of lower courts to hear cases in ways beneficial to the administration, just as the administration wants them to do in the Posse Comitatus Act case.
There is another compounding factor in Trump’s ability to evade accountability if he were to try to use the military to interfere with elections: That is the Supreme Court’s 2024 decision in Trump v. U.S., which provided the president with sweeping immunity from criminal prosecution for official acts. Under this precedent, the president could not be held criminally liable for ordering military or other interference in elections and his pardons for anyone who followed his orders would be unreviewable.
“To be very clear, [say] the president orders troops to go to every polling place in the United States on Election Day,” Bernstein said. “According to the government’s argument, no federal court could enjoin it, the president would be immune and the president could pardon all of the people he ordered to break the criminal law. If that’s not a prescription for how to lose our republic, I don’t know what is.”