A Law That Might Just Save the Midterms

On Sunday I wrote a  column  with a singular purpose: I wanted to shake readers out of any complacency they might be feeling about the integrity of the November midterm election. We cannot be sure that it will be free or fair.

President Trump has made it clear — very clear — that he is set to accept only one outcome: MAGA wins. Any other outcome is proof that the Democrats cheated.

And then two developments this week demonstrated that, if anything, I wasn’t quite alarmed enough. First, Trump  appeared on Dan Bongino’s podcast  (Bongino is the former deputy director of the F.B.I., now back in his more natural habitat) and said that undocumented immigrants “were brought to our country to vote, and they vote illegally.”

As a result, Trump argued, Republicans “should take over the voting in at least 15 places. The Republicans ought to nationalize the voting.”

Trump’s language here is reminiscent of the so-called great replacement theory — the idea, in one telling, that Democrats are trying to essentially replace white voters with Black and Hispanic immigrants.

Trump allies immediately picked up the call for federal intervention. “We’re going to have ICE surround the polls come November,” Steve Bannon  said  on his “War Room” podcast. “We’re not going to sit here and allow you to steal the country again.”

Senator Tommy Tuberville of Alabama  told Larry Kudlow of Fox News : “Get rid of these voting machines. There’s a half dozen people here, whether it’s in the House or Senate, Larry, that are up here as we speak that did not get elected. It was all bogus. Because we’ve seen the evidence.”

The second development isn’t directly related to voting, but the implications for our electoral system are hard not to fathom. On Tuesday,  The Washington Post reported  on an extraordinary abuse of power.

Late last year, a Pennsylvania resident identified only as Jon in the article wrote an email to a federal prosecutor named Joseph Dernbach, urging leniency for an immigrant who was facing deportation back to Afghanistan, where he risked being murdered at the hands of the Taliban.

Here is the entire text of the letter: “Mr. Dernbach, don’t play Russian roulette with H’s life. Err on the side of caution. There’s a reason the U.S. government along with many other governments don’t recognize the Taliban. Apply principles of common sense and decency.”

Within hours, Jon received notice that the Department of Homeland Security had issued a subpoena to Google to compel the company to release information about Jon’s Google account. And then, days later, a police officer and two Homeland Security investigators showed up at his house to question him about the email.

They left after 20 minutes and made it clear that he had nothing to worry about, but immense damage was done. If even a mild and moderate objection to the administration’s actions can trigger a subpoena and a visit from law enforcement, the chilling effect on dissent is obvious. The Trump administration is creating a pervasive atmosphere of fear and intimidation.

At this point it’s clear that this administration will abuse its authority and violate the law to retain power. We knew that after Jan. 6. We know that now.

So what can we do about it?

If you ever  write a book about a cultural or political crisis, you’ll run into something that editors sometimes call the “Chapter 10 problem.” It’s the moment when you transition from vividly describing the crisis to attempting to provide a solution and none of the solutions seem all that realistic or remotely satisfactory.

Everything that would actually fix the problem feels impossible. Everything that’s possible feels inadequate.

And so it is here. The Republican Party controls the elected branches of the federal government, so legislative reform feels impossible. And the reforms that might be possible seem inadequate. Would a Republican Congress really enact any measures that would hinder its own quest to retain power?

But it’s too early to despair. There might be a small window of opportunity to build a meaningful barrier to MAGA’s quest for permanent power.

On Tuesday, Trump  signed a bill  to fund major government agencies for the rest of the fiscal year, but it contained an important caveat. The Department of Homeland Security is funded only until the end of next week.

That means that Republicans and Democrats have only a few days to come to an agreement on regulating ICE and the Border Patrol before the department loses its funding. (ICE, however, would not be affected — it received $75 billion in supplemental funding as part of the One Big Beautiful Bill.)

I have a proposal.

But to understand it, we have to zoom out just a bit and look at how Trump is corrupting our elections. At its core, his entire strategy depends on a combination of misinformation and impunity.

His persistent and grotesque lies create a sense of emergency in the Republican rank and file. They’re convinced that illegal immigrants are voting en masse, that mail-in ballots are vulnerable to large-scale fraud and that deep-blue precincts are deliberately corrupting the count.

And then, once his supporters are sufficiently alarmed, his efforts to overturn the election aren’t viewed as blatant violations of the law, but as necessary emergency measures to save the country from the people who are actually trying to steal the vote — the Democratic Party and its antifa allies.

In their minds, Trump didn’t pardon criminals when he granted clemency to the Jan. 6 rioters; he pardoned patriots. And Trump’s cronies who created fraudulent slates of electors after the 2020 election in the hopes that Vice President Mike Pence would certify the election for Trump weren’t acting lawlessly but fighting the Democrats’ fraudulent abuse of power.

If Trump’s attack on our elections is rooted in misinformation and impunity, then the answer has to be rooted in truth and accountability. It’s imperative that we confront Trump’s lies wherever we find them while also working for consequential legal change.

There is  a fascinating quirk in American constitutional law. The president’s awesome pardon power is limited to federal criminal offenses.  He cannot issue a pardon in a civil case . In other words, he can release people from federal prison. He can’t keep them out of bankruptcy court.

Here’s where Congress can act.  As I’ve explained before , a complex series of judicially created immunities mean that it is virtually impossible to win money damages if a federal officer violates your constitutional rights.

A federal statute,  42 U.S.C. Section 1983 , gives you the right to sue for damages when state or local government officials deprive you of “any rights, privileges, or immunities secured by the Constitution and laws” — and those rights, privileges, and immunities  include voting rights .

But the statute does not apply to federal officials. They enjoy extraordinary immunity from liability.

This must change, and it can change. In November, Senator Sheldon Whitehouse and Representatives Hank Johnson and Jamie Raskin reintroduced a bill called the  Bivens Act . It’s remarkably simple. It would amend Section 1983 by stating that officials “of the United States” can be held liable on the same basis as officials of any state.

That’s it. That’s the bill. And it’s worth shutting down the Department of Homeland Security to get it passed.

If the bill passes and Trump signs it, he would be able to pardon his cronies if they commit federal crimes, but not relieve them from potentially immense civil liability. Money judgments don’t present the same deterrent as prison time, but they’re consequential nonetheless.

In my law practice, I saw fear of liability deter many constitutional violations. College presidents have removed speech codes. Police departments have changed policies. And not because of criminal prosecution, but from fear of substantial monetary judgments or injunctions from the courts.

In addition, the bill would have radiating positive effects across the government. No longer would officials from any branch of the federal government be able to violate constitutional rights secure in the knowledge that they would almost certainly pay no price. They would live with the same legal standards and the same legal risks that apply to every state and local official in the United States.

I’m not naïve.  I’m aware that it will be difficult to get Republicans to agree to greater legal accountability when they control the executive branch, when Republicans would be most likely to be held accountable, at least in the short term. And they would have to do so in force here to get past a potential presidential veto.

But the Bivens Act would also hold Democrats accountable when they’re back in power. It would give Republicans tools to restrain Democratic excess. The Bivens Act protects the Constitution. It does not punish any particular political party.

The Bivens Act is the best response to administration lawlessness, but it is not the only response. On Tuesday I emailed with Ian Bassin at Protect Democracy, a nonpartisan organization that, well, helps protect democracy. He shared a different proposal for state legislation designed to hold federal officials accountable for violating constitutional rights.

It’s called the  Universal Constitutional Remedies Act , and it’s a state law that would grant citizens the right to sue federal, state or local officials in state court for violations of the federal Constitution.

As Bassin explained via email, the constitutional theory behind the law is that “federal law only supersedes state law ​​when federal authority is exercised ‘in pursuance’ of the Constitution. And unconstitutional acts are the definition of acts not taken ‘in pursuance’ of the Constitution.”

There is no question that the Trump administration would challenge the law in court, and I can’t predict the ultimate outcome, but it’s hard for me to see a compelling reason states shouldn’t seek to hold every public official — including federal officials — accountable for constitutional violations inside their borders.

And lest you think the fix would be in when federal officers tried to defend themselves in state courts, federal law would give them the right to have the case heard in federal court. They would stand before the same judges that would hear cases under the Bivens Act.

Neither the  Bivens Act nor the Universal Constitutional Remedies Act is a magic bullet that will save American democracy, but they would provide greater levels of deterrence and accountability than I’ve seen so far.

And both proposed statutes do have one distinct advantage over criminal law. Prosecuting criminals almost always requires a government official to choose to prosecute. Justice rests on their discretion.

A civil case, by contrast, can be brought by any private citizen who believes in good faith that the government has violated his rights. Citizens don’t have to wait for the government to hold itself to account; they can choose to do it themselves.

My focus on the Bivens Act and the Universal Constitutional Remedies Act doesn’t mean that other proposals should be dismissed. Every incremental advance in the law helps preserve democracy, even if it’s as small as requiring ICE officers to take off their masks. It’s something, and something is better than nothing.

This dreadful moment has exposed the gaping holes in our systems of constitutional compliance and accountability. Our system was built far more than we realized on a foundation of misplaced faith in the enduring integrity of the federal government. We have to treat the federal government with the same degree of skepticism and accountability that we’ve reserved for our state and local governments.

We live in an age of greed and grifting, where public officials will routinely defy the Constitution to cling to power and impose their control. It’s necessary to adjust their incentives.

Yes, a corrupt president may pardon the crooks and cronies who act on his behalf, but a modest change in the law could give them pause. Violating civil rights should carry a profound cost, and the message to the Trump administration should be simple and clear: Protect the integrity of the election, or we will make you pay.