We do not need to catalog the cases of politicization of law enforcement by the Biden-Harris Department of Justice: the list is long and egregious. 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 on the state’s territory. Period.

Texas and Missouri have reportedly opposed the The sending of monitors by the Department of Justice to various electoral districts in those states. Fox News’ David Spunt reports that the Texas dispute appears to have been resolved by agreement of the parties, while a federal judge in Missouri (appointed by former President Trump) has denied the state’s request for a restraining order against the Department of Justice.

In my opinion, it is reprehensible for the Department of Justice to deploy observers 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 rattle sabers in red states to suggest that Republican-controlled state governments are violating the civil rights of minority voters, rather than investigating based on actual evidence that raises a reasonable suspicion of illegality.

But that said, states have no power to tell the federal government what it can investigate, and the Constitution’s supremacy clause prohibits states from obstructing federal enforcement of potential crimes under federal law.

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

If two or more persons conspire to harm, 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 guaranteed to him by the Constitution or the laws of the United States , or for having exercised it (.)

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

Special Counsel Jack Smith comments on a newly unsealed indictment that includes four felony counts against former U.S. President Donald Trump at the Department of Justice on August 1, 2023, in Washington, D.C. Trump was charged with four felony counts serious for his alleged efforts to overturn the 2020 election.
(Alex Wong/Getty Images)

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

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In my opinion, Smith’s theory in the Trump case It is an overreach that borders on the absurd. However, it is a useful example of the Justice Department’s interpretation of Section 241. Federal prosecutors view it as a broad mandate to protect voters from interference.

Of course, that doesn’t mean the Justice Department should use civil rights laws as pretext to investigate in the absence of compelling evidence. If the federal government has evidence of conspiracies to interfere with voting, it should work cooperatively with law enforcement agencies in the affected states.

But at the moment, this is more of a political dispute than a legal one. States do not have the authority to prevent the Department of Justice from investigating possible violations of federal law; and no individual has the right to challenge Justice Department supervisors unless and until that individual is charged with a crime based on flimsy evidence.

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There is one exception. Just as states have no authority to prevent the Justice Department from conducting investigations, the federal government has no authority to interfere with state administration of elections. From the constitutional point of view, said administration is mainly the responsibility of the State.

United States Attorney General Merrick Garland addresses staff on his first day at the United States Department of Justice in Washington, DC, 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 the DOJ is violating state law in a way unnecessary to enforcement in good faith of federal laws. Under the law, that state would have to ask the feds to stand down, and if that doesn’t work, it would have to ask a court to order the Justice Department to stand down.

There appears to have been a federal-state agreement, resolving the dispute in Texas. The Department of Justice has agreed that its supervisors will remain a respectful distance (more than 100 feet) from polling and central counting locations and will not interfere with voters when they attempt to exercise their right to vote, although voters may speak with the federal supervisors if they wish. do it. Therefore, Texas has withdrawn its request for judicial intervention.

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That’s how those disputes should be resolved, though again, the Justice Department should only follow up if there’s a real reason to do so. Absent strong evidence of voter interference, there is no reason to believe that Texas and Missouri will not provide a fair election.

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

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