Marc: Senator Sheldon Whitehouse, welcome back to Defending Democracy.
Sen. Whitehouse: Marc Elias, wonderful to be with you.
Marc: All right, so as we're recording this, the Senate is still in session. Republicans are trying to pass the Save America Act, which is just the stronger version of the voter suppression bill. And then there are even more terrible amendments that have been offered to make it even worse. So what's going on?
Sen. Whitehouse: Well, we're going back onto the measure that would be the vehicle for the bill if they were to get to it. So we're a step away from the actual bill. And the bill basically does three things. It has a voter ID provision so that when you show up at the polling place, you show your ID. And as I point out, most states already have that. Most states have made a choice whether they want to have that or not. In the case of Rhode Island, we have it. And it was kind of a pain in the butt because my image was always of the 80-year-old lady in the senior high-rise who hasn't traveled in a decade, has no passport, hasn't driven a car in five years, has no driver's license, has her Social Security card because she's on Social Security, but that's not valid ID.
And even though when she goes down to the lobby where they set up the polling place, everybody in the building knows her, she still gets hassled about having to find an ID. And so a lot of people worked with a lot of voters to solve that problem, an unnecessary problem, but we got the voter ID and we generally solved the problem.
So that's the voter ID piece. The next piece is who can register to vote. And that's where this bill gets really tricky because they have come up with a whole bunch of ways to make it really hard to register to vote. That targets young voters who are registering for the first time — obviously a target of theirs — and it targets people who don't have the resources to pay $165 to get a passport so that you can then use that to go and register to vote. And of course, when people are moving, you re-register. So all of the voter registration hassle creates an enormous amount of difficulty and it suppresses the vote.
To no particular end, a law like this passed in Kansas and a judge took a look at it and said: "You know, this thing has probably kept 31,000 legitimate voters from voting." All to protect against what he said was the best case the proponents of the law could offer, which was that over nearly 20 years, 67 people had either registered to vote or attempted to register to vote without being citizens. I suspect the 67 were all attempts. So for no voting effect, for 67 attempts that were probably rejected, 31,000 people lost the opportunity to vote because of the hassle of a similar registration.
And then comes the third part, which is the most devilish one of all, which is a massive voter file being gathered at the Department of Homeland Security, the home of ICE, that would sweep up all of the information, all of the voting records from every state. Both Democrat and Republican Secretaries of State and custodians of those records are fighting against that. Marc, you and I are both old enough to remember when Republicans would have gone berserk about a national ID, when we tried to do, like for healthcare, a Medicare card that you could use that was a voter ID. They acted as if we were trying to turn this thing into Soviet Russia.
Now they want far more intrusive information in the hands of the Department of Homeland Security. And why would they possibly want to do that? Obviously, it gives them huge opportunities for mischief. You know better than I do. Let me ask you: what kind of mischief could a Trump Department of Homeland Security get up to in elections if it had access — exclusive access — to all of the voter records of every American?
Marc: I'm going to answer that and then I've got to follow up on an earlier point you made. The fact is that it has been on the wish list of Donald Trump to get access to this information for years. People forget in 2017, he set up a voter fraud commission that tried to get this information and both Democratic and Republican states pushed back and it wound up dissolving and never happened.
Sen. Whitehouse: It actually was kind of a joke, the whole thing. It was a clown show of an operation.
Marc: Right. And then more recently, we've seen the Department of Justice try to get this information and they're suing 30 states. My law firm and I were fighting against those cases and so far we've won everywhere where there's been a decision. The DOJ is now bringing an emergency appeal in two circuits. And the reason why this is such a big deal for them — why they're willing to sue 30 states and now insist on it in the bill — is because if you want to turn out voters, you need the voter file. If you want to register voters, you need the voter file. If you want to conduct an election, you need a voter file. But also if you want to disenfranchise voters, you need the voter file.
Because what it gives people — what it would give the Trump administration — is your name, your Social Security number, your date of birth, where you've lived, where you've moved from if you've moved, whether you're registered as a Democrat or Republican. Do you vote by mail or do you vote in person? Have you ever voted and had your vote challenged? Do you vote on Election Day or do you vote early? It is a total picture of every voter. And so if you wanted to challenge or disenfranchise people in the hundreds of thousands in one fell swoop, the only way to do it is to have that voter file. There's no other reason for the federal government, that has no role in the administration of elections, to ask for that data.
All right, so here's my question to you now, Senator. You said something in the voter ID section that I think applies to the whole bill, and it is part of what has me slightly disoriented about what the Republicans are arguing. I remember when I was in law school — which I grant you was 30 years ago — one of the things Republicans would always say is: "There are no such things as federal elections. It's a misnomer. There are just state elections for federal office and we believe in the laboratories of democracy." Where are all the federalists in the Republican Party now saying "let the states do what they're gonna do"?
Sen. Whitehouse: They have an ulterior motive here that causes this, like so many other alleged principles, to evaporate when it's no longer convenient.
Marc: You mentioned one state where they went looking for non-citizen voting. I've got one for you that maybe if you run into a certain Senator from Utah, you could run by him. The state of Utah very recently went looking for this same thing — went looking for non-citizen voting — and they found one person registered who they think is not a citizen and zero voters.
Sen. Whitehouse: So the person who supposedly registered as a non-citizen — they're not sure — didn't actually vote.
Marc: Have you heard any of the senators address their own state of Utah? What do they make of that?
Sen. Whitehouse: No. Interestingly, that fact — that non-citizen voting is an imaginary problem they've created as an excuse to get at voter records and influence elections — has been left entirely out of the conversation.
Marc: Okay, so before we move to Fulton County, which I do want to get to, can you just give us the layman's version of: is this ultimately going to pass the Senate? How much longer do you think that this will be an issue? We've gotten a number of questions from people who are very concerned because they hear it's going to be put in a reconciliation bill. So what can you just tell people about the status of whether this bill will pass?
Sen. Whitehouse: I think the chances of the bill passing are hovering around zero. There's dissension within the Republican caucus. Senator Murkowski spoke out against the substance of the bill and plenty of Republicans, particularly those facing election, are concerned about what a point this is to be raising on the floor when everybody's concerned about Iran and gas prices and electricity prices and all the stuff that is driving Trump's popularity down through the floor and dragging them with it. Is this really where they want to be "scoring points" because they're not even scoring points; they're losing the debate on this.
So for all those reasons, it's not very popular in the Republican caucus and they've got to figure out how to get off of the bill. I suspect what they do is ultimately they go to cloture and then they can control the amendments and then the time runs and then we have a vote and then it fails. Then they try to pick up the ashes of this disaster and see if they can put some of it into reconciliation, which is the budget term for a law that can pass through the Senate to the extent it only deals with financial and budget matters. And the problem for them is that none of this stuff is financial and budget.
What they can do is offer money to states if they do certain things. And we'll see how that plays out — we don't see the proposal yet — but if they offer money, they're going to have to pay for it. So they're going to have to figure out where they're going to get the revenues. Meanwhile, they're spending money on all of this nonsense while people's electric bills are going through the roof and people's gas bills are going through the roof. Again, they're not on message and it hurts them and ultimately the Parliamentarian will probably limit anything that they try to do.
Then of course you run into the Supreme Court problem, at least if the Supreme Court were to treat Republicans and Democrats alike, that there's the so-called "anti-dragooning" doctrine that the federal government cannot force a state to do something by putting financial pressure on it. So there's a border between giving people grants to encourage them to do stuff and when that becomes a persuasive or coercive force. So if they try to make it coercive, they then run into the anti-dragooning doctrine, which is a Roberts doctrine, believe it or not, going back to the Affordable Care Act.
Marc: All right, so I was going to get to Fulton County next, but you are baiting me into talking to you about the Supreme Court. And so you've won because I love talking to you. I could talk to you all day about the Supreme Court. The Supreme Court just heard a voting case involving whether ballots postmarked by Election Day but received afterwards should count or not under a Mississippi law that allows them to count.
The Republican National Committee sued to say that this violates the federal Election Day statute. It's hard to see how that's the case, but nevertheless, that's what they argued. When I read the Constitution, again, it says the states get to make the policy choices and if you in Congress don't like the policy choices, you guys get to overrule the states. This is not a constitutional claim. There's no balancing. But they were talking about voter fraud and perceptions of voter fraud. And I'm thinking, how does this have anything to do with whether it's an Election Day? Did you catch any of this? And what's your reaction?
Sen. Whitehouse: They're good at making stuff up when it serves their interests. In the filthy, foul Citizens United decision, they made up that there would not be any danger of corruption from allowing unlimited amounts of money into politics. That allowed them to allow unlimited amounts of money into politics and make very happy all the big donors who'd help get them on the Court and traffic in political influence. So we've seen this game before for them to come in and make false findings of fact — a whole separate point that the Supreme Court shouldn't be making any findings of fact, let alone false findings of fact. They've got a record of making stuff up to help get them where they want to go. When you hear those alarming things where they take voter fraud seriously despite 67 attempts in 20 years in one state and one attempt and no voting in another state, the fact that they're willing to countenance this as if it were a serious argument just shows how baked-in they are to the Republican side, the billionaire side of this debate.
Marc: Last question on the Court and then we'll go to Fulton County. We are what, three months out from the end of the term? What are you watching for—either a particular case, a trend, or a sign of hope? What should people be looking for in these final months? Because I know one of the challenges has been that if the Supreme Court issues one ruling that seems reasonable, that is then used to bludgeon everyone who is a critic of the Court to be like, "Well, but you know, look, they ruled this way in this case, so it can't all be unfair or not on the level." What are you looking at?
Sen. Whitehouse: Well, we're still looking at the ethics problem that the
Court has declined to address and face. We're still working towards a term limit bill that would be very popular with the American public. We're still watching out for these continued episodes of false fact-finding by the Court, which is a real tell when they're off on a political mission, because as any serious appellate lawyer knows, they're not supposed to make any fact findings, let alone wrong ones. And not so much from the Court but from the Chief Justice: I'm looking for a signal that he's impatient with the Marshal Service refusing to say that it will investigate behind the "utterer" of a threat to a federal judge.
If somebody calls up a federal court and says: "I'm gonna kill you, I'm gonna kill your daughter, I'm gonna burn down your house." That's a crime; an investigation ensues. But there are a number of legal theories that would justify looking behind the utterer of the threat if the utterer was part of a conspiracy. Whose purpose was to threaten judges? People who hadn't made the call but were part of the conspiracy could be charged. If someone had solicited or paid him to say, "I don't want my phone number on this, but you're a crazy person, you don't care, here's a thousand bucks, make this threat" — that kind of solicitation is something that could be investigated and charged. And if it's part of a sort of racketeering-type conspiracy, the enterprise is liable and participants in the enterprise are liable for its various acts. And this could be one of those acts. There are a number of ways where something that is kicking off all of these threats can be examined and looked into. And the Marshal Service refused to do that despite the fact that it's Investigations 101.
Marc: You'd think that would be its job, right?
Sen. Whitehouse: That's its job. But the problem is it's a MAGA Department of Justice to which the Marshal Service reports. And the MAGA Department of Justice does not want anybody investigating what's behind the judges' threats, because it leads right back to people like Laura Loomer and Elon Musk and the Vice President and the President himself and all of their minions who cook up these threat schemes.
Marc: That seems like that needs to get more coverage because that is outrageous. I'm glad you called that out. All right, let's turn to the ballot raiding and seizure effort by the Department of Justice. Back in January, we had Donald Trump tell the New York Times that he wished he had seized the ballots in 2020. Then we obviously had the Department of Justice executing a search warrant and seizing ballots in Fulton County. Shortly thereafter, since then, we have seen a subpoena issued to Maricopa County for ballot images essentially that were kept by the state Senate. What is your take on all this as someone who is not just on the Judiciary Committee now, but was once a U.S. Attorney? And so you dealt with it your career — I'm sure lots of search warrants and having to approve them and execute them.
Sen. Whitehouse: I put on my U.S. Attorney hat and the first thing that you have to start with is the proposition that if you are executing a search warrant and searching for evidence in order to conduct a criminal investigation, you want as little danger, hazard, and trouble as you can. You want to do it by the book. Because at the end of the day, when somebody is charged with an offense based on that evidence, they have the right to go back and inquire about what took place in that search and to suggest that anything weird that took place in the search is a sign that the prosecution should be dropped — that it's vindictive and bad faith, violates the law, whatever. So you just don't want that. That's why you follow standard procedures.
Well, standard procedure one: use the local U.S. Attorney. The Georgia U.S. Attorney was not involved. A Missouri U.S. Attorney got the search warrant. Even if you were running a multi-district investigation with a central office running it, you still go to the venue U.S. Attorney to get the search warrant; that's just standard practice. So when you vary from standard practice, you raise a question that is unnecessary to raise. If you look at the U.S. Attorney who was involved, he has a history of flagrant election denial. And he was in touch with White House and administration people who have flagrant histories of election denial, even ones who were sanctioned for it. So why would you want to use that U.S. Attorney and bring all that nonsense and risk into your search?
Then the FBI Special Agent in charge in Georgia was either shoved out or resigned immediately before the search went down.
Marc: And so for people that don't know, that's the top FBI official right?
Sen. Whitehouse: That's the agent in charge in that particular FBI office. So he got pushed out or resigned. And now that opens up a whole lot of questions for the defendant. Was this related to the search? What did you know? They become a witness. Then you look at the affidavit that supported the search warrant, which mentioned witnesses anonymously, but not enough that we couldn't figure out who they are. And once you know who they are, you know that they were part of the Georgia election denial scheme. And they didn't tell the Magistrate Judge all of the elements, all of the ways in which these people interacted in that scheme. So that goes to their credibility and leaving that out creates a massive problem for the search. Why? Just be honest. Just have the real U.S. Attorney involved. Just don't do it in such a way that the FBI Special Agent in Charge has to resign.
And then it got even weirder by who they had present — and the weirdest person present was the Director of National Intelligence, Tulsi Gabbard. No DNI has ever gone to a search warrant scene before. It is out of her lane. In fact, there's a whole body of concern that we don't want our intelligence establishment doing domestic work. They are to protect us from foreign influence; they're not supposed to be operating against Americans in America. So what the hell is she doing there?
Well, in addition to that, she also runs the Trump weaponization working group, which is this sort of secretive group of Trumpsters across a whole bunch of federal agencies who conspire and consort together to do various scheming. It's not clear what they do; they're not an official group that reports to anybody. By putting her in that search, you made her a witness to that search, which makes a defendant able to depose her about what she saw during that search and what she was doing there, which opens up an avenue for questioning under oath of what the hell this weaponization working group is going on.
So if you add all of these things up, they opened up for any defendant later a massive array of challenges potentially embarrassing to the administration, potentially harmful to any case, and dragging in this weaponization working group that they've tried to keep secret. So it's either the worst and most stupid search warrant execution in the history of search warrants—with all these multiple stacked-up rookie stupid errors — or, and here's the tell: or they knew there would never be a defendant who could raise all of those questions because this was never intended to be a criminal investigation.
It was a sham search warrant execution whose entire purpose was to seize the documents that they had tried to seize through civil proceedings and failed at. And this was their last desperate attempt. Well, if they don't want to charge anybody — if they want to make sure that nobody's ever charged, if this is not a real criminal investigation — why the hell do they want those documents? And the reason they want those documents is what you know better than anybody else is what you said earlier: because those documents can be used to influence and manipulate a later election in Georgia.
Marc: I've got to ask you a couple of questions about the process points and then we'll get to the big conclusion. Did you also find it odd that the President offered one explanation for why Tulsi Gabbard was there, Tulsi Gabbard offered a different explanation, and Todd Blanche actually offered various different explanations? Like they didn't seem to have their story straight.
Sen. Whitehouse: Yeah, and again, if there's gonna be a defendant, the defendant's gonna be able to ask questions about all those conflicting stories about why she was there. Never mind her testimony that the President, she said, told her to go. So now you have a situation in which the defendant can not only get Tulsi Gabbard on the witness stand and ask about the weaponization working group, but can ask about her conversation with the President that told her to be there. Was that part of a vindictive prosecution scheme? One of them's lying because the stories don't add up. So it's a whole big stinking legal mess that the last thing you want to do is let a defendant get near — which again is a huge tell that this whole search warrant exercise was a sham and only designed to get the documents in hand.
Marc: Yeah, and I'd add also, so that everybody just follows: apparently after the search was over, the President got on the speakerphone of one of their cell phones with the agents who conducted the search.
Sen. Whitehouse: Which if you want to make the case that this is vindictive prosecution or an unjust prosecution or a political prosecution — even if you can't prove that case, you still get the discovery into all of that. You get to ask the agents what they were told. You get to try to look at timelines. When did the President know about all of this? Who was really directing it from behind the scenes? The whole thing is a giant, stinking mess. And the giant, stinking mess of it is its own problem, but it is also the compelling clue that the whole search was a sham because no decent prosecutor would want to expose all of that huge, stinking, stupid mess to a defendant.
So they never intended that there would be a defendant. It was just a documents grab. And that makes the search warrant a big lie — not just the little lies of not having disclosed to the Magistrate Judge all of the different aspects of the election denial scheme that the so-called anonymous witnesses had described. But the really big lie is: "Your Honor, we're here to get a search warrant in order to execute a search in pursuit of a criminal investigation." That is the big lie. That's almost never the lie, even in affidavits that are found later to have been false. That is an enormously big lie.
Marc: All right, so the question is: towards what end? Why are they doing this? I've said that two things can be true at the same time and we need to be open to it. The first is that part of this is perpetuating the lies about the outcome of the 2020 election and casting doubt. It's kind of like the performative release of the Epstein files last spring.
But the second part is equally true and is also the case: the federal government has no experience in executing search warrants against ballots. It has no experience in how you handle them, how you collect them, what you then do with them once you have them, how do you count them, review them, or analyze them. And all of that is a learning experience that the Department of Justice is now undertaking because they want to have the optionality to do this again in the future as soon as this November.
I don't think that's that big of a stretch because he said he wished he had seized the ballots in real time in 2020. The Department of Justice has now figured out, for example, you don't go to the local U.S. Attorney's office, you go to this guy in Missouri. That's one of the things they've learned.
Sen. Whitehouse: Yeah, the established election denier U.S. Attorney in Missouri.
Marc: They have. Then they've probably also figured out, as you say, what to do when there are FBI agents who don't want to go along with it. Right?
Sen. Whitehouse: Out the door they go.
Marc: Yeah, so I think that this is a real threat to the upcoming elections. I think what we saw with the grand jury's subpoena in Maricopa County is more evidence of this preparation.There was a report in California that a local sheriff seized 650,000 ballots under state law. I know the Attorney General in California is dealing with that, but I think that this is all about normalizing and building expertise on the part of Donald Trump and his supporters that seizing ballots is kind of a normal thing. It's what happens and they have the expertise to do it. And I'm really worried about this for this fall.
Sen. Whitehouse: Well, let's hypothesize that they're willing to share the ballots or an electronic version of them with people whose task is to monkey wrench the Georgia election for Trump and the Republicans. What could a knowledgeable operative out to monkey wrench an election in Georgia do with the information that the FBI now has seized?
Marc: Yeah, I think it's very similar to the voter file, which is that having the actual ballots gives you a lot of insight into how voters vote. And I don't mean that by what the tally is, but I mean like what patterns you see — when people ticket split, when they don't ticket split, when it looks like they just pick all of the candidates in column A, when they leave certain races blank. All of these things go into useful information for operatives to try to predetermine how to influence the counting and tabulation of votes the next time.
It's the reason why back in 2008, the state of Minnesota had a recount that I represented Al Franken in, and it posted a large number — not all of them, but a large number — of ballot images on their website. They were doing it for good civic reasons, but me and a number of other people pointed out: this is just creating a roadmap for mischief in the future. Everybody downloaded all the images because you learn an enormous amount about voter behavior, voter psychology, voter patterns that, if you want to use for good or ill, people are able to. And if you give all of that to the Department of Justice—and exclusively to the Department of Justice — and they are under the control of the President, it is a recipe for shenanigans in the future.
Sen. Whitehouse: Could the shenanigans include setting up Democrat voters to have their names purged from voter rolls so that when they did show up to vote they had an obstacle to voting — that the election officials at the ballot place said, "No, there's a challenge or a problem and you're not eligible to vote"?
Marc: Absolutely. I think that we have faced an epidemic since the 2020 Georgia senate runoff. In connection with that election, we saw the Republican Party working with outside dark money organizations to challenge the voter eligibility of 360,000 voters. They submitted lists of names — voters they had never met — and said: "These people should not be allowed to vote." Me and my law firm and others, we went to court and we fought this back and we won.
And we have been dealing with this epidemic of these third-party groups submitting these mass lists, saying these people should be kicked off the rolls, every election since. Well, Senator, it's a whole different kettle of fish if instead of me fighting some right-wing group with a shady name, instead the list that's submitted to kick people off the ballot comes from the Department of Justice, comes from the Department of Homeland Security.
It comes with the imprimatur of the United States, comes with the presumption of regularity and good faith. And their data goes to the counties and the states, and they say these people all need to be removed. First of all, a lot of the counties are just going to say, "Okay, I don't want trouble with the Department of Justice." Some of the states will say the same. But when I go to court, now I'm telling a judge: "Believe me, and don't believe the people with the official seal." This is something that is undoubtedly on the minds of Steve Bannon and Stephen Miller and the whole crew that are doing this, which is why I think they so desperately want this information.
Sen. Whitehouse: Even enough to cook up a search warrant and drag a Magistrate Judge into the mess and do some pretty flagrant misconduct.
Marc: Yeah, so I gotta ask you about a different set of legal cases, which is the Epstein files. Here we are and we were told that all of them had been released, and then we were told again. Now it appears from what the DOJ is saying, they're not gonna release anymore, but only about half of them have been released. Do you have any confidence that there will eventually be justice for the victims here and for the public — for Congress that voted for this bill that will actually be complied with — or is this just Todd Blanche getting to tell you no?
Sen. Whitehouse: It's gonna take some doing. I think when they're really caught and when Republicans are willing to hold their feet to the fire as they did by passing this bipartisan Epstein file disclosure act, then things can be forced to come out. But it's really reluctant in the way they respond. I'll give you the example: the FBI interviewed a woman who said that Donald Trump had sexually assaulted her and physically assaulted her when she was about 14. Those interviews were several and they caused four interview reports called 302s to be generated by the FBI agents about this one witness.
Of those four 302s, the first one mentioned nothing about Trump. The second three mentioned her allegations that Trump had sexually assaulted her and physically assaulted her. Only that one got released — the one that didn't mention Trump. The three that did mention Trump didn't get released. The putative reason was that they were duplicative, which is a word that allows them to be exempted from disclosure.
But they weren't. And the Department of Justice, under pressure, had to admit that that was a mistake. And they released them. And they released them in part because they had already turned those documents over to Ghislaine Maxwell's lawyers in the discovery for her prosecution. So if they hid it too obviously, there was another avenue through which those documents could be obtained. They were like: "that would really blow up in our faces."
So they went ahead and released the three 302s, but they held back another 37 pages, which very much appear to be the handwritten notes of the FBI agents who took the interview. So when the FBI is interviewing an individual, they take contemporaneous notes. When that's all done, they sit down and they type up the 302 that memorializes the notes more efficiently and that becomes the FBI file document.
But the notes are still there. And they haven't revealed the notes. They say that the notes are duplicative of the 302s. But of course they're not, because they're 37 pages and the 302s are far shorter than that. And as any lawyer knows, just because a summary discusses a topic doesn't mean that there's not important stuff in the underlying document—in the actual notes. And so those are still being withheld. So that's just one example of how difficult it has been to get the release of actual Epstein file records and how the cover-up of those records tends to circle around the interests of Donald J. Trump.
Marc: Yeah. And it feels like everything in the executive branch right now is in service to him. We're used to administrations where if the Department of Labor needed to put out a report and it might be embarrassing, they still put out the report. If an Inspector General did an investigation that might embarrass a political appointee, they still put it out. This administration just seems totally different. There doesn't seem to be any room between the President's personal interest and every action of the administration.
Sen. Whitehouse: Yeah, it's Banana Republic stuff — from the flattery and sycophancy in meetings to the manner in which decisions are made with the prevailing characteristic seeming to be: "How would El Jefe think about this?" to the destruction of all sorts of important government guardrails set up and proven over generations to try to make sure that our government operates honestly and in conformance with the law and the Constitution. Now it's just: what does Trump want and how do we deliver for him because it's kind of a reign of fear around him.
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