JAG firings, DHS memo fuel legal experts' election concerns

Sen. Blumenthal presses Patel on FBI role at polling places

Legal experts and former military lawyers cited multiple administration actions that they said signal potential federal interference in the midterm elections, including a legal memo from the Department of Homeland Security that outlines a pathway for deploying National Guard troops at polling places.

Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center and a former acting assistant attorney general for national security at the Justice Department under the Obama administration and through May 2017 under the Trump administration, told UPI that a “constellation” of developments has raised concerns.

“I’ve been looking at this now for a year and there’s nothing that the administration has said to quell the concerns or the fears that people would be intimated from voting and worse, that people would be potentially stopped, detained unlawfully, potentially U.S. citizens attempting to vote,” McCord said.

One action McCord cited was the Justice Department’s removal in June of a 281-page manual titled “Federal Prosecution of Election Offenses” from its website without notice or explanation. A group of senators wrote to then-Acting Attorney General Todd Blanche seeking an explanation; Blanche has not provided one publicly, according to UPI.

Public statements by Blanche, President Donald Trump and FBI Director Kash Patel have not eased those concerns, the news service reported.

Patel, during his testimony before the Senate Judiciary Committee last week, declined to directly rule out sending agents to the polls when asked by Sen. Amy Klobuchar, D-Minn., and Sen. Richard Blumenthal, D-Conn.

“So would you agree with me that deploying FBI agents to the polls on Election Day would be contrary to the law?” Blumenthal asked, repeating his question after an initial response from Patel.

“I don’t know that we can’t legally do it. I’m telling you we’re going to house our agents and intel officers in our field offices for election security purposes,” Patel answered.

“I’m dissatisfied that you are unwilling to give us an unequivocal, clear, unambiguous commitment that the FBI will be kept out of election interference,” Blumenthal said. “You are involved in seven voter-related subpoenas issued to the Nevada Secretary of State’s Office. You were involved in the seizure of election records from Fulton County Georgia. Clearly the FBI has been involved in possible election interference. That is why your committing to avoiding that kind of interference moving forward is so important today.”

In January, Trump told The New York Times that he regrets not directing the National Guard to seize voting machines after his loss in the 2020 election, though he questioned whether the Guard was capable of such a task.

“I don’t know that they are sophisticated enough,” Trump said of the National Guard. “You know, they’re good warriors. I’m not sure that they’re sophisticated enough in the ways of crooked Democrats and the way they cheat to figure that out.”

Also in February 2025, Defense Secretary Pete Hegseth fired two of the top JAG officers in the armed forces — Lt. Gen. Joseph B. Berger III of the U.S. Army and Lt. Gen. Charles Plummer of the U.S. Navy — without citing any conduct or other reason for their dismissals.

Eugene R. Fidell, who teaches military justice at Yale Law School and is a former JAG officer for the U.S. Coast Guard, told UPI that if service members were asked to perform immigration duties around polling places, they and their commanding officers would look to JAGs for guidance.

“If an order were disseminated to send federal troops to suppress disorder at the polling places, a JAG would be duty-bound to say you can’t do that unless the president declares an insurrection,” Fidell said. “If the president does that, the constitutional fat will be on the fire. We will be watching a legal civil war go on.”

Fidell added that the courts offer a check. “The protections against the plot against the election are several. One is the courts,” Fidell said. “An alert civil society and state attorneys general and local authorities who are ready, willing and able to proceed immediately to court at the first sign of trouble. It’s going to be touch and go but three will be people racing to courthouses. The very effective core of lawyers who have been carrying the banner so effectively in our country have long since drafted the necessary legal papers and they’ll be coming into court at a time when the federal government will defend at the hilt anything the government does here.”

The DHS memo at the center of the debate was obtained by American Oversight, a nonprofit government watchdog, through a Freedom of Information Act request and shared with state attorneys general. It argues that if National Guard members are activated in a federal status under Title 10 of U.S. Code and then deputized by the Secretary of Homeland Security, their deployment would not “run afoul” of the Posse Comitatus Act, the federal law that prohibits using the military for domestic law enforcement without congressional approval.

“When National Guard members are activated in a federal status under Title 10, they are employees of the United States,” the memo reads. “This is supported by a fair reading of the statute’s plain language, its broad grant of authority to the Secretary of immigration enforcement, use of the term ‘employee’ in other areas of federal law, and Article 1 of the Constitution, which provides that activated State militias are ‘employed in the service of the United States.’”

Peter Kenny, vice president of litigation and investigations at American Oversight, told UPI that the memo shows how the department might deploy armed officers at polling locations under the cover of immigration enforcement.

“What we’ve been focused on, especially here we are in the run-up to the midterm election, is that we’re seeing more and more claims of non-citizen voting,” Kenny said. “We’re seeing more and more federal officials at the most senior levels opening the door to deploying armed officers at polling locations, ostensibly to enforce immigration laws.”

Kenny called it “an extraordinary use of the National Guard, and as many legal experts have noted, quite an unprecedented application of the specific legal provisions that they are citing.” The memo, he said, “really shows a lack of any barrier to them accomplishing their goals in deploying National Guards in truly unusual and extraordinary ways.”

DHS Secretary Markwayne Mullin said during an appearance on Fox News last weekend that the department is investigating more than 300,000 cases of suspected non-citizen voting.

Federal law prohibits federal forces at polling places because their presence may intimidate and deter voters. Two lawsuits have been filed in the last two weeks to block the Trump administration from deploying federal officers to the polls.

A coalition including the League of United Latin American Citizens and Common Cause filed one suit, arguing that Mullin’s public comments and actions warrant court intervention. The lawsuit cites Mullin stating that the administration has a policy authorizing ICE officers to go to polling places to serve warrants and detain people for suspected immigration violations, and points to a Polling Place Policy adopted under Mullin and acting ICE Director David Venturella to guide agents in performing immigration enforcement at polling places.

The second lawsuit, brought by the NAACP and a coalition of organizations, argues that the administration’s plans violate the Voting Rights Act by intimidating voters — particularly minorities who may fear being confronted by immigration officers regardless of legal status.

McCord said legal teams for voting rights and civil rights groups are prepared to act if federal agents or military members are sent to the polls on Election Day. The midterm elections are now six weeks away.