The Bulwark

The Bulwark

Home
Shows
Newsletters
Special Projects
Events
Founders
Store
Archive
About

Share this post

The Bulwark
The Bulwark
Jack Smith Should Be Investigating Trump’s Current Election Conduct
User's avatar
Discover more from The Bulwark
The Bulwark is home to Sarah Longwell, Tim Miller, Bill Kristol, JVL, Sam Stein, and more. We are the largest pro-democracy bundle on Substack for news and analysis on politics and culture—supported by a community built on good-faith.
Over 839,000 subscribers
Already have an account? Sign in

Jack Smith Should Be Investigating Trump’s Current Election Conduct

It would not just be justified, it would be prudent.

Donald B. Ayer's avatar
Philip Allen Lacovara's avatar
Dennis Aftergut's avatar
Donald B. Ayer
,
Philip Allen Lacovara
, and
Dennis Aftergut
Oct 26, 2024
229

Share this post

The Bulwark
The Bulwark
Jack Smith Should Be Investigating Trump’s Current Election Conduct
33
Share
Former US President Republican presidential candidate Donald Trump speaks during a campaign rally in Traverse City, Michigan on October 25, 2024. (Photo by JIM WATSON/AFP via Getty Images)

WE’VE BEEN HERE BEFORE. The pre-election public record is full of clues—flashing red lights, really—that Donald Trump is preparing to try to steal the vote again if he loses. The Justice Department should be investigating it now.

Any legitimate, fact-based court challenges to particular vote counts are not the problem. The alarm arises from the ominous indications that Trump will try to gum up the works at every stage of vote counting, state-by-state Electoral College meetings, and election certifications.

The apparent end game is to create enough chaos to prevent Congress from certifying any Harris–Walz victory. Hanging over it is the potential for violence both around the country and—in a January 6th redux—at the Capitol. Threats against election officials have already intensified.

There is a reported factual basis sufficient to justify the FBI opening a preliminary investigation into the potential for brazen election interference. When adequate “predication” exists, DOJ rules authorize investigators to begin their work before suspected crimes reach fruition. Gathering evidence before it disappears or before memories fade is sound investigative methodology.

Get 30 day free trial

Under the attorney general’s Guidelines for Domestic FBI Operations, a preliminary investigation may begin based on information indicating that “[a]n activity constituting a federal crime or a threat to the national security . . . may be occurring, or . . . may occur [in the future].” The purpose of a preliminary investigation is to “detect, obtain information about, or prevent or protect against federal crimes.” 

Under the guidelines, any such inquiry that involves a political candidate is deemed “sensitive”—hence the highest levels of the Justice Department, sometimes including the National Security Division, must be notified and must approve.

Consistent with DOJ’s election sensitivity policy, a new investigation would not be announced before Election Day to avoid the 2024 version of 2016’s Jim Comey catastrophe. Nonetheless, should news of the investigation leak, it would likely spark immense political blowback from the ex-president and his supporters, who will howl that the current administration is the one orchestrating the “interference.”

But the pursuit of justice can’t bend to political pressures. And there is a powerful predicate for DOJ to act.

Start with the context. Trump has done it before. Just look at the House January 6th Committee’s compelling evidence. Or consider the two D.C. grand jury indictments, which found probable cause to believe that Trump criminally conspired after November 2020 to defraud the United States by impairing its legal functions and to violate the civil rights of the majority of Americans.

Or reflect on what’s happening now as Trump refuses to say he would accept the 2024 election results, just as he did before the last election. There are cascading indicia of a much better organized effort by Trump and his team this time. The Republican National Committee, co-headed by the ex-president’s daughter-in-law Lara Trump, is expressly fielding an army of “poll watchers” targeting cities with majorities of Democratic voters. Last election, such “poll watchers” overwhelmed Detroit’s vote count center, among others, and harassed the mostly black election workers there.

The election is just days away—don’t miss any of our articles, newsletters, podcasts, and livestreams:

Then we have a growing band of election denialists occupying local and state election boards. Any student of political organizing understands that aberrant election officials popping up systematically in separate locations does not happen spontaneously. In all, Trump’s GOP has recruited more than a dozen of last election’s fake electors to serve as electors this time around. Former Acting Solicitor General Neal Katyal put it succinctly last week: 

The rogues are no longer amateurs. They have spent the last four years going pro, meticulously devising a strategy across multiple fronts . . . to overturn any close election.

Special Counsel Jack Smith would be well positioned to address any efforts by Trump to “steal the election 2.0,” given Smith’s experience investigating 2020 election crimes. The special counsel’s current mandate already includes investigating “efforts to interfere with the lawful transfer of power following the 2020 presidential election . . . as well as any matters that arose or might arise directly from this investigation.”

Prudence would justify an express expansion of the special counsel’s mandate in a directive from the attorney general, as contemplated by DOJ regulations. 

Finally, there’s a legal reality that Smith knows well. If Donald Trump loses the election, and if there are grounds to believe that he has committed another round of election-related crimes, a subsequent prosecution could proceed far more expeditiously than the current one. After all, as to criminal misconduct in 2024, Trump would get no cloak of presidential immunity fashioned by John Roberts’s Court, as he received for his 2020-election schemes. For any efforts to steal the 2024 election, private citizen and candidate Trump would have to face justice based on the facts and the law. This time, Trump is acting at his peril.

Send this article to any special counsels you know, or any friends worried about the election:

Share


Donald B. Ayer served as deputy attorney general under George H.W. Bush and principal deputy solicitor general in the Reagan administration.

Philip Allen Lacovara is a former deputy solicitor general of the United States for criminal and national security matters, former counsel to the Watergate special prosecutor, and former president of the District of Columbia Bar.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.


Subscribe to The Bulwark

Hundreds of thousands of paid subscribers
The Bulwark is home to Sarah Longwell, Tim Miller, Bill Kristol, JVL, Sam Stein, and more. We are the largest pro-democracy bundle on Substack for news and analysis on politics and culture—supported by a community built on good-faith.
Susan McBrearty Davis's avatar
Joseph S. Spoerl's avatar
Marisette L van Linden's avatar
Different drummer's avatar
Don Gates's avatar
229 Likes∙
33 Restacks
229

Share this post

The Bulwark
The Bulwark
Jack Smith Should Be Investigating Trump’s Current Election Conduct
33
Share
A guest post by
Donald B. Ayer
Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H.W. Bush.
A guest post by
Philip Allen Lacovara
Philip Lacovara is the former deputy solicitor general of the United States, counsel to the Watergate special prosecutor, president of the D.C. Bar.
A guest post by
Dennis Aftergut
Former federal prosecutor, currently Of Counsel, Lawyers for American Democracy
Subscribe to Dennis
The American Age Is Over
Emergency Triad: The United States commits imperial suicide.
Apr 3 • 
Jonathan V. Last
5,383

Share this post

The Bulwark
The Bulwark
The American Age Is Over
1,487
How to Think (and Act) Like a Dissident Movement
AOC, solidarity, and people power.
Mar 24 • 
Jonathan V. Last
4,140

Share this post

The Bulwark
The Bulwark
How to Think (and Act) Like a Dissident Movement
1,165
Chaos, Cowards, and Alligator Alcatraz
The gang goes live on this edition of The Next Level.
Jul 2 • 
Tim Miller
, 
Jonathan V. Last
, and 
Sarah Longwell
2,498

Share this post

The Bulwark
The Bulwark
Chaos, Cowards, and Alligator Alcatraz
699
1:06:42

Ready for more?

© 2025 Bulwark Media
Privacy ∙ Terms ∙ Collection notice
Start writingGet the app
Substack is the home for great culture

Share