Trump's Justice Department spent October trying to get courts to let it stop California from counting 20,000 ballots. It lost three times. Behind the scenes, it had already turned to criminal law.

A federal grand jury in Santa Ana issued three subpoenas to the Los Angeles County election office, on October 21 and October 24, States Newsroom reported on October 30 after getting the subpoenas through a records request. A Justice Department letter sent with at least one of them says they were "issued in connection with an official criminal investigation" by Homeland Security Investigations.

The answers are due November 4 — the day after Election Day.

Then on October 29, five days before the election, the department's second-highest official sent a letter to election officials in what appears to be every state. It told them that failing to keep election records "is punishable by up to a year in prison and a $1,000 fine," Votebeat reported.

"The mask is off now," said David Becker, a former Justice Department voting attorney who now runs the nonpartisan Center for Election Innovation & Research. "This is all a political effort at this point, and it's an effort by what appears to be a desperate administration to interfere with the election."

How it got here

On October 13, the Justice Department told California that Homeland Security had found 20,000 suspected noncitizens on the state's voter rolls. It gave state and county officials 48 hours to review the list and set aside those ballots, as we reported at the time. California said the list included U.S. citizens and people who weren't even registered to vote.

The department sued on October 15. Then it lost, again and again:

• October 26: the 9th U.S. Circuit Court of Appeals rejected an early appeal.
• October 28: U.S. District Judge David Carter denied the department's request for an emergency order, and wrote that the administration was engaging in election interference.
• October 30: the 9th Circuit denied a new appeal.

While that fight played out in public, the grand jury was already at work.

What the subpoenas want

The subpoenas don't name a target. But States Newsroom reports they ask for records on how Los Angeles officials responded to the 20,000-name list, how they screen for illegal voting, and any records suggesting "someone has aided and/or abetted an alien voting in a federal election."

That phrase matters. At a court hearing on October 27, Bill Essayli, the top federal prosecutor's deputy in Los Angeles, warned that election officials could face "criminal liability" if they counted those ballots. Judge Carter told him the threats should end. "This court believes it would be wise that any threats to state and county elected employees cease immediately," Carter said, according to Votebeat. In his written ruling the next day: "These threats must stop."

Grand jury subpoenas to election offices aren't new by themselves. Prosecutors use them to get records on specific voters. But States Newsroom reports these, and the ones issued in Alaska's Senate race, look aimed at how election officials do their jobs. A Reuters investigation found the administration has issued more than 100 subpoenas for records on thousands of voters across 13 states, most in the last three months.

"Threats and intimidation have no place in elections," said Dean Logan, the Los Angeles County registrar.

A letter to every state

The October 29 letter was signed by acting Deputy Attorney General Trent McCotter, the second-ranking official in the Justice Department. Votebeat confirmed that several states received identical copies, and officials said it appears to have gone to all 50. It cites a 1960 records law and names no violation and no investigation.

"Election officials know that they have an obligation to comply with this law," said Justin Levitt, a former Justice Department official, "and this certainly looks like it's meant to intimidate rather than to inform." He said he knew of no precedent for sending such a reminder to every state.

"I have never seen the DOJ send this kind of letter across the country in the days before the election," University of Kentucky election law professor Joshua Douglas told Votebeat.

It is the third round of warnings this year. In July, letters told officials they could be prosecuted for knowingly letting noncitizens vote. In September, letters to 29 states and Washington, D.C., threatened penalties for not preserving 2024 records. Separately, the Justice Department this week demanded that Washington state set aside the ballots of about 400 suspected noncitizens, another list the state says includes citizens.

A judge orders it to stop

Unions and civil rights groups sued on October 29 to stop the prosecution threats. Their lawsuit says the administration has "initiated a criminal investigation into county officials including issuing grand jury subpoenas."

On the night of October 30, U.S. District Judge Trina Thompson issued a temporary restraining order barring the Trump administration from threatening election officials or demanding that they set ballots aside. "Free exercise of the right to vote is a core tenet of our democracy," she wrote.

Republicans are backing the administration's demand. Eleven Republican-led states, led by Florida's attorney general, filed a brief urging the courts to make California set the ballots aside. Texas, Alabama, Arkansas, Iowa, Kansas, Montana, Nebraska, South Carolina, South Dakota and West Virginia signed on.

What we know

While it was losing three times in court over its demand to set aside 20,000 California ballots, the Trump Justice Department had a grand jury subpoena Los Angeles County's election office three times, in a criminal investigation, with answers due the day after Election Day. On October 29 its No. 2 official sent what appears to be every state a letter warning of a year in prison over election records, citing no violation. One federal judge told the department "these threats must stop," and a second has now ordered it to stop threatening election officials.

Sources

• Federal subpoenas to election officials mark escalating Trump DOJ pressure campaign — States Newsroom, via Florida Phoenix
• DOJ again warns election officials of potential criminal prosecution, days before midterm elections — Votebeat