Democrats, retired military lawyers press Trump on National Guard at polls

DHS memo outlines path to deputize Guard for immigration enforcement

With Election Day less than 50 days away, a growing number of Democratic lawmakers, retired military leaders and civil society organizations are seeking assurance from members of the Trump administration that the U.S. military will not be deployed to or around polling places — while also preparing for such a move to occur.

Having armed federal agents — like the FBI or Immigration and Customs Enforcement — or military troops near the polls is clearly barred by federal law, but President Trump and several other key officials have recently sidestepped direct lines of questioning around the issue. Some have even suggested that such a presence might be necessary to ensure trust in the vote, a claim that voting officials across the United States deny. Those voting officials say they plan on administering the midterm elections as usual and have been working hard to assure voters that plans are in place if armed federal officials do show up.

The concern over federal interference at the polls has led to a wave of unprecedented action by civil rights groups, unions and political organizations, including multiple lawsuits, Freedom of Information Act requests and public service announcements to voters about what to watch for on Election Day. And many are specifically ringing alarm bells over the possible involvement of the U.S. military, particularly the National Guard.

Trump’s extraordinary use of the National Guard on U.S. soil has already upended democratic norms in the U.S. and unnerved civil rights groups, NPR reported. The outlet further reported that experts say the U.S. Supreme Court’s recent rejection of Trump’s executive order attempting to limit mail voting has backed him into a corner.

Retired judge advocates and the Insurrection Act

Retired Air Force military lawyer Maj. Gen. Steven Lepper is part of the Former Judge Advocates Working Group, made up of several dozen retired military lawyers. The group has been tracking the president’s executive orders and military deployments and has written several reports to Congress about its worries.

“Quite frankly, as this president’s options are dwindling, the idea that he might use the military becomes even more of our concern,” Lepper said.

Lepper pointed in particular to the executive order declaring antifa a terrorist organization, which he said could be invoked amid disruption at polling places to justify use of the Insurrection Act — something Trump has repeatedly threatened to do.

“Either this administration is trying to limit the ways in which votes can be cast, or they’re setting up a situation where a scenario could be concocted to justify the use of military force,” Lepper said.

Any deployment would almost certainly face immediate legal challenges — like all of Trump’s domestic military deployments — but, as Lepper noted, such challenges take time to work through the courts.

“There’s no do-over,” Lepper said. “There’s no way the courts can basically reverse the impact of something like [election interference].”

When asked directly by a reporter in May about deploying the National Guard or ICE, Trump did not rule it out, saying he would do “anything necessary” to make sure there are “honest elections.” NPR reached out to the White House for clarification on the comment but did not receive a direct response.

The National Guard can legally be used to support elections in many capacities — like logistical or cybersecurity purposes — when ordered by state governors. But the president deploying troops or federal armed agents to polling places is illegal.

Congressional pressure on military leaders

In March, several Democratic members of the Senate Armed Services Committee sought assurances from Gen. Gregory Guillot, commander of U.S. Northern Command, who would be in charge of federal troops if such an order came from the president.

When asked by Sen. Tammy Duckworth of Illinois what guardrails would be in place in that situation, Guillot said he very clearly understands the laws.

“If given the order, I would look at it very closely,” Guillot answered, later adding that he didn’t think troops should be “anywhere near” polling places.

Last month, the Democratic National Committee sued the Trump administration for failure to respond to Freedom of Information Act requests seeking records about any plans to seize ballots in the midterm elections.

In recent weeks, Democratic Sen. Elissa Slotkin of Michigan directly pressed several military leaders and federal agencies to confirm that U.S. troops won’t be sent to polling places. Only the chairman of the Joint Chiefs of Staff, Gen. Dan Caine, has responded, saying there are “no plans” to send U.S. troops to the polls.

Immigration enforcement and the DHS memo

Concern has also grown about immigration enforcement agents being used to intimidate voters, a practice that is also illegal.

The Department of Homeland Security told NPR it is “not planning operations targeting polling locations.” This month, Homeland Security Secretary Markwayne Mullin said ICE agents could serve warrants at polling places. That, too, could include the military accompanying the agents, a move most legal experts consider illegal.

An internal DHS memo from last year that was recently made public shows that the administration has outlined a way to circumvent the Posse Comitatus Act, the law that prevents the military from performing law enforcement duties including immigration enforcement. The memo lays out a specific path to deputize federalized National Guard members as immigration enforcement officers — something many members of the administration, like Stephen Miller, have long stated as a goal.

“This memo is designed as a work-around to say, ‘Here is how we can get this done without violating federal law,’” said Chioma Chukwu, executive director of American Oversight, the nonpartisan, nonprofit watchdog group that obtained the memo through a Freedom of Information Act request.

The memo, which NPR has read, does not explicitly say anything about elections or polling places. But Chukwu said that given the administration’s escalating claims around voter fraud by unauthorized immigrants, it should be read in that context.

“We should be planning for this to potentially be the way that they justify deploying National Guard to the polling places around the country,” she said.

When asked about the memo, DHS told NPR it “speaks for itself.”