Jack Smith should investigate Trump’s current election behavior

WE’VE BEEN HERE BEFORE. The pre-election public records are full of indications — flashing red lights, actually — that Donald Trump is preparing to try to steal the votes again if he loses. The Justice Department should investigate this now.

Any legitimate, fact-based lawsuits against certain vote counts are not the problem. The alarm comes from ominous indications that Trump will try to ramp up work every phase of vote counting, state-by-state Electoral College meetings, and election certifications.

The apparent endgame is to create enough chaos to prevent Congress from certifying a Harris-Walz victory. Hanging over it is the possibility of violence, both across the country and – in a redux on January 6 – at the Capitol. There are threats against election officials already intensified.

There is one reported factual basis enough to warrant the FBI opening a preliminary investigation into the possibility of blatant election interference. If sufficient “prediction” exists, DOJ rules authorize investigators to begin their work before suspected crimes become reality. Collecting evidence before it disappears or before memories fade is good research methodology.

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Under the orders of the Attorney General Guidelines for Domestic FBI Operations, a preliminary investigation can begin based on information indicating that “(an) activity constitutes a federal crime or a threat to national security. . . can take place, or . . . could happen (in the future).” The purpose of a preliminary investigation is to “detect, obtain information concerning, or prevent or protect against federal crimes.”

Under the guidelines, any such investigation involving a political candidate is considered “sensitive” – therefore the highest levels of the Justice Department, sometimes including the National Security Division, must be notified and approved.

Corresponds to DOJs election sensitivity policyno new survey would be announced before election day to avoid the 2024 version of 2016 Jim Comey’s catastrophe. Nevertheless, if news of the investigation were to leak, it would likely lead to a huge political backlash from the ex-president and his supporters, who will howl that the current administration is the one orchestrating the “interference.”

But the pursuit of justice cannot bow to political pressure. And there is a strong predicate for DOJ to act.

Start with the context. Trump has done it before. Just look at the January 6 House of Representatives committee convincing evidence. Or consider the two D.C. Grand Jury indictmentswho found probable cause to believe that Trump committed a criminal conspiracy after November 2020 cheating the United States by harming its legal functions and violate civil rights of the majority of Americans.

Or think about what happens now as Trump refuses to say he would accept the 2024 election results, just like he did before the last elections. There are cascading indications of a much better organised effort by Trump and his team this time. The Republican National Committee, co-led by the ex-president’s daughter-in-law, Lara Trump, is emphatically setting up an army of “poll watchers.” targeting cities with a majority of Democratic voters. In the last election, such “poll watchers” overwhelmed Detroit’s vote-counting center and harassed the predominantly black election workers there.

Then we have a growing group election deniers occupying local and state election boards. Any student of political organizing understands that anomalous election officials who systematically show up in various locations do not happen spontaneously. In total, Trump’s Republican Party has recruited more than a dozen of the fake voters from the previous election to serve as voters this time. Former Acting Solicitor General Neal Katyal put it Short and sweet last week:

The villains are no longer amateurs. They have been working professionally for the past four years and have meticulously developed a strategy on several fronts. . . to overturn any close elections.

Special Counsel Jack Smith would be well positioned to take on any attempts by Trump to “steal the election 2.0” given Smith’s experience investigating 2020 election crimes. The special counsel’s current mandate is already includes investigating “attempts to interfere with the lawful transition of power following the 2020 presidential election. . . as well as all matters that have emerged or could arise directly from this research.”

Prudence would justify an express expansion of the mandate of the special counsel in a directive from the Attorney General, as contemplated by DOJ regulations.

Finally, there is a legal reality that Smith knows well. If Donald Trump loses the election, and if there is reason to believe he has committed a new round of election-related crimes, another prosecution could move much faster than the current one. After all, as far as criminal misconduct in 2024 is concerned, Trump would not receive a mantle of presidential immunity established by the court of John Roberts, as he received for his 2020 election manifestos. For any attempt to steal the 2024 election, private individual and candidate Trump must be brought to justice based on the facts and the law. This time, Trump acts at his own risk.

Donald B Ayer served as Deputy Attorney General under George HW Bush and Deputy Attorney General in the Reagan Administration.

Philip Allen Lacovara is a former Deputy Attorney General of the United States for Criminal and National Security Affairs counsel to the Watergate special prosecutorand former president of the District of Columbia Bar.

Dennis Nagut is a former federal prosecutor, currently a consultant to Lawyers Defending American Democracy.