Lawfare Daily: Can the President Declare an Elections Emergency?

Summary

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Podcast Summary: Lawfare Daily – Can the President Declare an Elections Emergency?

Podcast: The Lawfare Podcast
Host: Benjamin Wittes (Editor-in-Chief, Lawfare)
Guests: Molly Roberts & Anna Bauer (Lawfare Senior Editors)
Date: March 20, 2026
Topic: Examination of a circulating draft executive order proposing presidential control over federal elections, its origins, legal basis, and the hazards it presents.

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Overview of the Episode's Main Theme

This episode explores the emergence of a draft executive order that reportedly would allow the President to assert direct federal control over U.S. elections, citing national security authority. The discussion covers the order's origins among fringe conspiracy circles, its legal (non)foundations, possible real-world consequences, and how seriously the threat should be taken—especially given the involvement of “election denial” activists familiar from previous controversies.

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Key Discussion Points and Insights

1. Background and Recent Developments

• Molly Roberts introduces the subject by referencing ominous presidential social media posts about an “irrefutable legal argument” for an executive order on elections, especially after the Save America Act seemed stalled in Congress.
  • “I’d been seeing some ominous-looking tweets… the President was saying he was going to present a quote unquote ‘irrefutable legal argument’ in the form of an executive order on the subject of elections…” (03:53)
• Benjamin Wittes situates listeners by separating:
  • An already-issued March 2025 executive order (focused on voter ID & registration)
  • The stalled Save America Act (proposed federal voter ID/citizenship requirements)
  • The new, more drastic draft executive order now under discussion

2. What Did the March 2025 EO and Save America Act Try to Do?

• The 2025 EO sought to tighten voter registration (requiring photo ID and proof of citizenship—documents most Americans don’t have), and forced recertification of voting machines under near-unachievable standards (05:21).
• The Save America Act would mandate in-person voter registration and extensive proof-of-citizenship checks—disadvantaging groups like women who changed their name after marriage (06:52).
• Both measures were blocked or stalled; hence talk turned to executive power.

3. Origins and Authorship of the Draft Executive Order

• The draft EO emerges from a complex “fringe activist” process, with conspiratorial roots and unclear provenance.
  • Anna Bauer: “The origin story here is a little bit murky…not entirely clear who all was involved in the drafting of this 17-page draft elections executive order.” (12:42)
• Key figures include:
  • Peter Tickton (longtime Trump associate and attorney)
  • Kurt Olson (current White House Election Integrity Supervisor; previously a prominent election denier)
  • Michael Flynn, Patrick Byrne, Stephanie Lambert (well-known election conspiracy actors)
• The initial push came from “Juan O Savin” (Wayne Willett), a QAnon-adjacent influencer who, as Bauer notes, is “the subject of a theory that he is actually JFK Jr, living under an assumed identity.” (17:20)
  • Memorable moment: The group went through “13 versions” before arriving at the 17-page length—17 being QAnon's secret code number (20:23).

4. Nature and Content of the Draft EO

• The executive order is “kind of every election deniers’ fantasy wishlist” (09:04).
• It is significantly harsher on mail-in ballots than previous proposals.
• It combines elements from the March 2025 EO and the Save America Act, plus new restrictions (09:15).
• Who’s pushing it? – A familiar cast: “Patrick Byrne, Mike Flynn…Stephanie Lambert…Garland Favrito, Mark Cook, Laura Schar…” and others with alleged direct links to Trump inner circles (22:00).

5. Why Take This Seriously?

• Molly Roberts outlines multiple reasons for concern:
  • Real administration officials (Kurt Olson, Heather Honey) are interacting with these groups (27:09).
  • President Trump has a “proven appetite” for invoking national emergencies for policy ends, viewing it as a way to circumvent normal restrictions (27:45).
    • “He likes declaring national emergencies…He definitely is of the view…and has essentially articulated the view…that declaring a national emergency lets him do things…” (28:00)
  • The President has already attempted similar moves and publicly regretted not going further in 2020.

6. Legal Analysis of the Theory Behind the Draft EO

• The draft EO’s central claim: declaration of a national emergency gives the president authority to overrule constitutional and statutory election rules.
  • Wittes: “If the president whispers the words ‘national emergency’…he can override the Constitution…” (33:00)
• Roberts: This is a profound misunderstanding of the National Emergencies Act, which actually limits presidential power by requiring specific statutory authorization—none of which covers elections.
  • Instead, the draft EO randomly cites statutes like IEEPA (economic sanctions), the Defense Production Act (industry mobilization), and the Federal Information Security Modernization Act (federal IT security), misapplying them to federal election control (36:00–38:45).
    • “They’re just pointing to a bunch of sort of random statutes. It’s not going to work. They don’t have anything to do with elections.” (38:45)
• The likely legal fate: courts would rapidly block such an order, perhaps even more quickly and comprehensively than prior efforts.

7. What Are the Real Risks?

• Main risk: Chaos and Uncertainty
  • “One risk, one big risk, is just chaos, right? The President issues this order… it’s unclear to states whether they’re supposed to comply…” (40:03)
  • Red states may attempt compliance, triggering inconsistent election procedures.
  • If issued close to the election, there would be administrative chaos—requirements impossible to implement in time, ballots left uncounted, and erosion of public confidence.
  • Concerns about the President ignoring the courts (“five alarm fire”) and using federal forces (41:00).
• Possibility of Seizing Voting Machines/Ballots:
  • Forcibly trying to “remedy” alleged noncompliance post-election, potentially justifying dramatic, unprecedented actions.

8. How Do the Activists View Their Prospects?

• Anna Bauer: Some, like Juan O Savin, are convinced the EO will be signed “any day now.” (42:57)
• Others believe the President will act either before or after the election, especially if the Save America Act collapses.

9. What Happens if Executive Action is Taken Close to an Election?

• Legal System Response:
  • Lawsuits would immediately seek injunctions; first stop likely district courts, aiming for a national TRO within hours (45:12).
  • The Supreme Court’s “Purcell Principle” (disfavoring last-minute changes to election rules) could complicate quick judicial action.
  • If issued too close (within 60 days), the complexity of U.S. elections would make administration of new requirements “practically unworkable.” (46:46)
  • Main threat thus remains chaos, not successful enforcement.

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Notable Quotes & Memorable Moments

• On the Law:
  • “There are details. There’s not more to it in that… it’s a much stronger legal argument with real serious substance.” – Molly Roberts (33:57)
  • “They’re just pointing to a bunch of sort of random statutes. It’s not going to work. They don’t have anything to do with elections.” – Molly Roberts (38:45)
• On the Actors:
  • “This Juan O Savin character got a coalition together… now it’s been circulating and allegedly has the attention of the White House.” – Anna Bauer (22:00)
  • “He is a QAnon figure, kind of QAnon influencer…there’s a theory that he himself is actually JFK Jr. who died in the ’90s…” – Anna Bauer (16:00)
  • “You never thought you’d be talking about on the Lawfare podcast.” – Benjamin Wittes, on QAnon mythology (18:06)
• On Risk:
  • “I think the biggest threat is chaos.” – Molly Roberts (47:42)
  • “In this second Trump administration, there is a case for taking fringe actors seriously… they are fringe, but they have real influence and power on the people who are at the highest level of power.” – Anna Bauer (31:46)

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Timestamps for Important Sections

• March 2025 EO & Save America Act explained: 05:21–09:15
• Origins and players behind draft EO: 12:42–23:33
• QAnon & draft EO numerology: 17:11–20:38
• Why take the threat seriously?: 27:09–31:46
• Legal (non)foundations of the EO: 33:00–39:19
• Main risks & possible executive defiance: 40:03–42:47
• Court’s likely response in a ‘nightmare scenario’: 44:34–48:47

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Conclusion

The podcast takes a deep dive into the real-world implications and legal hollowness of a draft executive order to federalize elections based on manufactured “national emergency” authority. Despite lacking legal merit, the discussion cautions listeners not to dismiss the threat entirely, given the demonstrated influence of election-denying activists within some spheres of presidential decision-making, and the proven presidential inclination to act aggressively on such advice. The greatest risk is administrative chaos and public confusion, should such an order be issued on the eve of an election, rather than long-term federal usurpation of election control.

Transcript

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[Benjamin Wittes]

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[Anna Bauer]

This Juan oh Savin character got a coalition together and it was drafted and then now it's been circulating and allegedly has has the attention of the White House.

[Benjamin Wittes]

It's the Lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, here with Molly Roberts and Anna Bauer, both Lawfare senior editors.

[Molly Roberts]

One big risk is that the President issues this order. He issues it close to the election and it's unclear to states whether they're supposed to comply. It's Also possible that red states would go ahead and comply even though their laws haven't been properly adjusted to do this, that they would say, oh yeah, we're going to try to enforce all of that.

[Benjamin Wittes]

Today we're talking election craziness. A draft executive order has been floating around that would assert presidential control over elections all over the country. How seriously should we take it, what would it do and who was behind it? All right, Molly, start us out. How did you get on this crazy subject?

[Molly Roberts]

Well, I unfortunately often read the President's truth social posts and I'd been seeing some ominous looking tweets, truths, whatever we're supposed to call them, where the President was saying that he was going to present a quote unquote irrefutable legal argument in the form of an executive order on the subject of elections, kind of related to the stalling out of the Save America act in Congress. So I'd been keeping an eye on that and thinking, oh God, what could this be? And then the Washington Post published a story about the President considering an executive order on elections. So I thought, oh, maybe that's what it is, and started to look into it.

[Benjamin Wittes]

So the President has issued an executive order on elections once before. He has. So for those who are a little bit tied around the axle about this whole subject and can't keep the legislation separate from the prior executive order, separate from the future executive order, that may or may not be real. Give us a little bit of background here to situate people what has already happened and what are they proposing in legislation and what is contemplated in further executive orders.

[Molly Roberts]

Yeah, and I don't blame people for being confused and having trouble keeping up because it's a lot of overlapping, but not exactly overlapping objectives over the course of a lot of time and coming in a lot of formats, some of them sort of hypothetical and some of them already existing. So. So I guess the place to start would be with the March 2025 executive order. And that is an executive order that was issued. And that executive order was also about voter identification registration having to do with showing their papers or citizens showing their papers when registering to vote. It mostly tried to achieve that mandate by instructing the Election Assistance Commission, which is an independent agency that supports election administration, to, to change its registration forms, which it sends by mail, to require a passport or a photo ID that proves citizenship. And I don't know if people remember getting their real id. It was a big slog. That seems like a pretty intense form of id. It does not prove citizenship. So that's an ID that almost nobody has. So that's what that was trying to do. It didn't try to make Americans vote in person, but it tried to make registration harder. And that was kind of the main thing that that act did. It also had to do with the decertification of a lot of voting machines. And they could only be recertified if they met really stringent standards that experts said were super expensive, super time consuming, and just not really feasible to get done before the midterms. So that was the March order did not fare well in court. The central provisions of it have been blocked by three federal courts. So not working out great for the President and his allies who want to make it harder to vote, essentially, and seemingly to make it harder for demographics that they think will be voting for Democrats to vote. So that brings us to kind of the political drama of the moment, which is the Save America act in Congress. And the Save America act is really similar to what we were just talking about with the March Executive Order, but not completely the same. So it would require the vast majority of Americans to register to vote in person and to show a photo id, but also proof of citizenship. So passport, birth certificate, but everything has to match, which can be difficult. So one big example that people have brought up about for whom this would be difficult is women who changed their names when they got married. And so that's the same America Act. It does not ban mail in ballots, although the President has wanted it to ban mail in ballots. It would make it a little harder to vote by mail. And then it would also force states to submit voter rolls regularly to the Department of Homeland Security, which ties in with a separate effort that the White House has been undertaking. I think that's kind of the TLDR on the Save America Act. And again, it looked for a long time like it was definitely not going to pass. And now there's way more of a real legislative battle over that. Which brings us to this draft Executive Order. And I know I've been going on and on and on, but that brings us to the draft executive order, the Save America act, when it looked like it really wasn't going to pass. And still now the President was quite upset about it and was tweeting a lot about how he really needed to achieve these objectives. He was saying there will be voter ID for midterm elections, whether approved by Congress or not. He said, the people of our country want the citizenship. Well, not exactly requirements, right? Enforcement of those requirements. They don't want mail in ballots, which again, not actually in the act. He also said that they don't want transgender for everyone, which is something he's been pushing to get in the Save America Act. But I think that's more off the table.

[Benjamin Wittes]

And just to be clear, that has obviously nothing to do with elections, right?

[Molly Roberts]

Yeah, yeah, yeah, nothing to do with elections. He. He seemed to get a little distracted in the middle of his tweet and move on to some culture war stuff he said, playing in women's sp, open borders and transgender for everyone. So he mentioned it, but even these activists who I'm about to get to, they didn't even try to put that in their order. So the draft executive order and Anna can talk about who the activists are pushing this, but it would try to achieve sort of a combination of what's in the Save America act and what's in the March 2025 order, and then add some stuff on top of that. Particularly as regards mail in ballots, it is way stricter on the question of mail in ballots than any of those acts. So, I mean, I could go through every single detail of what it is, but that would take me. And I've already been going on for like, five minutes. That would take me like five, zero minutes. It is basically kind of every election deniers fantasy wish list. So I'll stop there.

[Benjamin Wittes]

All right, so give us the history of this draft executive order. It shows up the other day a few weeks ago in a Washington Post story, but it actually has a little bit of history before that, before we get to the characters who are behind it. Is this an order the President is preparing to sign, or should we assume that the president, like, what's the status of this draft executive order? Where does it come from, and what do we think the President is likely to do with it?

[Molly Roberts]

I think Anna can speak to that for sure. The details of where and who it comes from. I think that as far as the bigger picture question of basically how seriously should we be taking this? The people involved are really fringe actors. The legal theories they're putting forth are. I don't even know if fringe is the word. They're just totally laughable. They're really easy to dismantle. But the President has a history of taking those kinds of.

[Benjamin Wittes]

You mean it's not an unassailable legal argument?

[Molly Roberts]

It's not unassailable. It's not irrefutable. It's not ironclad. It's the opposite of all those things. You could huff and puff and blow it down, so it's hard to read it. And Take it seriously. But also think back to 2020, when the president did seriously entertain a draft executive order that, similar to this one, would have declared a national emergency on elections so that he could go in and seize voting machines using the Department of Defense. He recently said he regrets not doing that. He didn't do it, but he thought about it. So I think that reading this executive order and saying, ah, the President is going to sign exactly this would be a little silly. But it would also be naive to think that he's not considering any of the ideas at all, that bits and pieces of them might work their way into policy, that maybe even more dangerously, a slightly stronger version of this could end up on his desk.

[Benjamin Wittes]

All right, Anna, where does this thing come from? And who is the strange cast of characters who gave rise to it?

[Anna Bauer]

Yeah, so, Ben, we talk about this in the piece that the origin story here is a little bit murky. It's very hard to pin down, and it's not entirely clear, clear exactly who all was involved in the drafting of this 17 page draft elections executive order. It's also not even clear if, like, how many versions are circulating of this order. We spoke to, for example, Peter Tickton, who is a friend of Trump's for many years. They've known each other since they were teenagers. They were at the New York Military Academy together. Tickton subsequently is an attorney and has represented Trump unsuccessfully, actually, in civil litigation in Florida that he brought against Hillary Clinton and others. That was the case in which Tickton and Alina Haba and others were sanctioned for making representations to the court that were frivolous, according to the court. But we spoke to Mr. Tickton because he was named in this Washington Post article as one of the proponents of this draft executive order, and he provided a copy of it to Democracy Docket prior to our publication of our article. And so we spoke to him and what he told us is that he wrote a kind of precursor to this 17 page version that is now circulating. And he does not know who wrote that particular version. But, but that version is the one that he has sent to President Trump. According to him, he says he emailed it to Trump. I did not know that Trump even had an email. I mean, I'm sure that he does, but I didn't know he emailed. So not entirely sure exactly how that works, but ticked him, told us that he has a direct line of communication to the White House and to Trump. He also told us that, you know, he's raised this issue with Kurt Olson, who is the White House Election Integrity Supervisor and has been a longtime election denier before his current position in government. And then we also spoke to Tickton about who else is kind of a proponent of this order. And he named a few familiar names, Patrick Byrne, Mike Flynn, and then Stephanie Lambert, who is an attorney who is now awaiting charges on election tampering in Michigan. So, you know, it's kind of a familiar cast of characters who are the proponents of this, and it's not entirely clear. Although Tickton said that he has reached out to the President, Trump himself, in response to questions from reporters, has said that he didn't know what people are talking about when they asked about this draft Executive Order. So it's not entirely clear exactly to what extent the White House or Trump himself is considering it. However, we did a little bit more digging into the history of, of this particular order and it's, it's pretty, it's a pretty fascinating story, Ben. The people who are involved after we spoke to ticked in. I did a deep dive on Rumble, listening to old podcast and videos about this national emergency and draft Executive order. And as far as I can tell from, from what we've uncovered in our reporting, one of the key figures here is this guy who goes by the name Juan oh, seven. He is a QAnon figure, kind of QAnon influencer. His real name is Wayne Willett. He's a former private investigator in Washington State, according to reporting from the Daily Beast. And he kind of became this QAnon influencer. There's a conspiracy theory about him, actually, that he has never confirmed nor denied, but kind of seems to play into it a little bit in his public appearances. But there's this theory that he himself is actually JFK Jr who died in the 90s famously, but living under an assumed identity.

[Benjamin Wittes]

So it's really a conspiracy theory. It's kind of a fantastical, like, delusional system.

[Anna Bauer]

Yeah, it's completely delusional. And people have all these theory. And like, this is a theory, I should say in QAnon, there's a few people in QAnon that Kunan followers think could be JFK.

[Benjamin Wittes]

And just to be clear, we're not talking about the reincarnation of JFK Jr. We're talking about the he didn't die in that plane crash and has been secretly living under.

[Anna Bauer]

Yeah. And there's a version of the conspiracy theory that involves the person who is JFK junior Living under assumed identity, revealing himself and teaming up with Trump as

[Benjamin Wittes]

a running to go after the pedophiles.

[Anna Bauer]

Yeah, to go. So, I mean, it's a crazy. It's crazy, right?

[Benjamin Wittes]

You never thought you'd be talking about on the Lawfare podcast.

[Molly Roberts]

There are also so many dead Kennedys. You'd think they'd diversify a bit. You'd think they wouldn't. You know, she was only JFK Jr.

[Anna Bauer]

But, but like, he kind of plays into it, this Juan, oh, seven figure by like, like whenever he does podcast, he won't, he'll never ever put his face on camera. It's always like kind of pointing the camera in a different direction so you can only hear his voice because people think that his voice sounds like JFK Jr. For some reason. And there's like all these video cuts of people comparing his voice to JFK Jr anyway, so this Juan Osavin character, who himself has a history with some of these election conspiracists like Patrick Byrne and Mike Flynn, because he was this one of seven, was, you know, one of the people who was making a lot of claims about the 2020 election. And, and he has said on podcasts that he convened in January of shortly after the inauguration, in 2025, after the 2024 election, he convened a group of what he called legal minds and election experts. Experts to try to put together a draft executive order like the one that, that we. That eventually became the 17 pager that democracy Docket published and that Peter Tickton provided to them. And, you know, they worked, he said, over the course of several months, this coalition of people, they went through 13 versions of this order until they finally settled on the one that was released back in, I believe it was April of 2025 different versions of this 17 page draft executive order started being circulated. And Ben, I should mention to note that the draft executive order is 17 pages. 17 is a number that is important in QAnon followings because we have reached

[Benjamin Wittes]

the numerology stage of the conversation because

[Anna Bauer]

Q is the 17th letter of the Alphabet. And so a lot of QAnon followers see the number 17 as a kind of coded signal.

[Benjamin Wittes]

Right.

[Anna Bauer]

And whether or not that's good that

[Benjamin Wittes]

we're talking about this.

[Anna Bauer]

Yeah, I just, I'm giving you all of the color. Okay. Around who created this draft executive order that allegedly the President might be using as a source for some future executive orders. But so Juan Osavin talks about this. He makes these claims, and I mean, keep in mind this is the same guy who is the subject of a theory that he is actually JFK Jr. So maybe don't take his word as, as truth. Take it with a grain of salt. But he claims that, you know, this has been this 17 page draft executive order has been on the President's desk. That is something that is going to happen. And then, you know, beyond that, there's other people who have claimed involvement who confirmed to us that one, they were part of the Wano Savin coalition. We talked to Tim Canova, who is a law professor at Nova Southeastern University School of Law. He was a part of this coalition of people who got together to try to draft this thing. And he also indicated to us that one of the leaders in kind of coordinating this group was a man named Garland Favrito. Now, Garland Favrito probably is not a familiar name for most people who are listening to this podcast, but it was a very familiar name to me because I've reported a lot on election happenings in Georgia. Garland is a very well known election activist in Georgia. He runs a very influential group called Voter ga. Now, we also contacted Garland and so I should, and I should mention this, that he claimed when we asked him for comment that he has not read the executive order and he declined to comment on it. He did not not specifically address the question of whether he was one of the people involved in coordinating this order. But in terms of other people, it's also other kind of election integrity activists, people like Mark Cook, Laura Schar, who are involved in various states with kind of so called election integrity work and who have been also proponents of a 2020 election conspiracy theory. So that's the group, Ben. And as far as we can tell, that is kind of the history of it is that this Juan Osavin character got a coalition together and it was drafted and then now it's been circulating and allegedly has the attention of the White House.

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[Benjamin Wittes]

So I listen to you and I think, wow, this sounds like a bunch of kooks. And my immediate instinct is to not take seriously the idea that the President would actually sign this. And so, Molly, walk me through why I should take this seriously.

[Molly Roberts]

Yeah, sure. So I guess one thing that I would add to everything Anna just said is that soon after the Post story about the existence of this executive order, ProPublica reported that Michael Flynn had convened Election Integrity Summit, at which Kurt Olson whom Anna just mentioned, and Heather Honey, who has a role overseeing election integrity at the Department of Homeland Security, were in attendance. And so those are officials in the administration who are confabbing with these people. And Heather Honey had previously floated exactly this idea that Trump could declare a national emergency to justify taking more control over elections. I think another reason to take it somewhat seriously is that the president really likes invoking national security and declaring national emergencies to pursue his agenda. I mean, he's said and invoked national security for the tariffs, of course, we know that from the Supreme Court case. And he has invoked it for things that people are less aware of, like terminating offshore wind projects or even continuing to construct the White House ballroom because under the East Wing there's a bunker that is an emergency bunker for the President and sort of saying that the whole project is imperative for national security because of that and stopping construction, this is the representation the Department of Justice made in a lawsuit against them for the construction would imperil the president. And so he likes declaring national emergencies. And he definitely is of the view and has essentially articulated the view that saying national security, declaring a national emergency lets him do things that otherwise he's not able to do. And of course, a big thing that he's not able to do, that he's been very clear about wanting to do, that he has explicitly said he wants to do in his tweets is take more control over elections. So I would say that that is the reason and take it seriously. And of course, as I mentioned, he did entertain. We know that he entertained and he himself looked at and has said that he regrets taking a similar but different. I suppose you could view it as more extreme action after the 2020 election. So I think that those are the reasons to take it somewhat seriously. But again, I wouldn't take it seriously in that. I wouldn't say this 17 page executive order, every provision of it he would try to enact via executive order. And I also wouldn't say that the precise legal reasoning in it is reasoning that he would attempt to deploy. And we could talk more about the precise legal reasoning in it.

[Benjamin Wittes]

Yeah, so we're going to get to that in a minute. So you're not suggesting that this draft executive order will be signed as such. You're really suggesting more that he has said that if the SAVE act does not pass, he will sign something. And this is one of the inputs on what that could be.

[Molly Roberts]

Yes, exactly. And I think another big reason to take it seriously is he already tried to do it. He did it in the he tried to do something really similar in March 2025. And the problem was that, I mean, there would be problems with saying there's a national emergency, too. But the idea here would be, here's everything they told you you couldn't do in that draft executive order. You can try to do it again. All you have to do is say national security is, say national emergency. And we know that actors in the administration are interested in looking at the idea of foreign interference in the election. And that would be kind of the pretext. The idea would be, this is a national emergency, this is a national security threat, because there's been interference by. And then there's a whole host of other conspiracy theories involving China, Venezuela, even Serbia. And so when we look a little more closely at the legal reasoning here, it also points more to that idea that they would be trying to establish foreign interference in the election in order to declare that national emergency. But again, the foreign interference thing, something that Trump has been interested in, something Tulsi Gabbard has been interested in, certainly something Kurt Olson has been interested in.

[Anna Bauer]

I will also just add that in this second Trump administration, there is a case for taking fringe actors seriously. And by that, I mean not the substance of what they're arguing seriously, but when they say they're going to do something or when they say they have some kind of policy impact on the White House, to take that seriously. Because these are people who are now at the center kind of. They're really, they, they are fringe, but they're, they're, they have real influence and power on the people who are at the highest level of power in the government. You know, Garland has connections with Kurt Olson. So Peter Tickton goes way back with Trump. Like, these are the proponents allegedly of, of this order, and they're people where there's, you know, verifiable connections between them and the president and the people around him. And so I think that there's a case for, you know, taking that seriously, even if you don't take the ideas seriously.

[Benjamin Wittes]

All right, so let's talk about this legal theory. As I understand it, it's basically that although the Constitution gives line authority for the holding elections to the states, and although the body that it allows to regulate that is Congress, not the executive branch, if the president whispers the words national emergency or maybe national emergency in all caps with exclamation marks, he can override the Constitution, the pretty clear language of a few different constitutional provisions, and sort of assert authority over it. Is that the basic theory here, or is there More to it than that.

[Molly Roberts]

That is the basic theory here. There is more to it in that there are details. There's not more to it in that. It's a much stronger legal argument with real serious substance. So, as you said, the President doesn't have any authority over elections. The elections clause of the Constitution says that it's up to the states, but that Congress has the power to make or alter such regulations. So what power does the President have? So the idea here is basically that national emergency is two magic words that give the President all the powers that Congress would otherwise have. One interesting thing that we experienced when we were chatting with these people, from my point of view at least, was that they just kept saying, well, the National Emergencies Act. The National Emergencies Act. And they seem to believe that the National Emergencies act was the statute that empowered the President to say national emergency, and then take whatever actions are necessary, whatever actions he deems necessary to resolve a national emergency that he's declared. Now, some of them did seem to believe that he would actually have to establish the existence of this national emergency, which goes to the foreign interference thing. I was saying, rather than just declare a national emergency, you know, Michael Scott style, I declare bankruptcy, and you're good to go. But once he's established a national emergency, they seem to think he can do anything. That's sort of a profound misinterpretation of the National Emergencies act, which really does pretty much the opposite. It reins in the President by saying that he has to declare the emergency, then point to a specific statute that gives him specific powers. The problem here, but is that no statutes give the President power over elections. The kind of very odd thing that they do in the draft executive Order is they do point to statutes, but the statutes they point to just don't work in this context. So the first thing they do is they discuss a separate existing executive order from 2018. That order is called imposing certain sanctions in the event of foreign interference in a United States election. And it declares a national emergency to deal with foreign interference in elections. And then it creates a process for imposing sanctions on individuals and governments who are found in a threat assessment by the DNI to have interfered. And that EO used ipa, the same statute that the President tried to use to impose his tariffs. And it actually makes sense in that context because IEEPA is an economic powers statute. And what they are doing in that executive order that Joe Biden extended and that his administration eventually applied to Iran and Russia is imposing sanctions. But what the activists in this draft executive order seem to be doing is saying, yep, you can still cite aipa, but instead you take all these actions related to elections and it doesn't really make any sense. I mean, it doesn't make any sense at all because AIPA has nothing to do with elections. But even if you try to get more into the nitty gritty of it and say, all right, what does the text of AIPA mention? The closest thing you can find is that it does mention property belonging to foreign entities. And you could say maybe that has to do with the voting machines. And they would be trying to kind of repossess voting machines. But then the voting machines would have to be not only foreign owned, they'd have to be owned by a foreign adversary who was determined to have interfered with elections. So doesn't work. The drafted executive order also mentions the Defense Production act and it mentions the Federal Information Security Modernization Act. Neither of these really works either. The latter is even stranger. First of all, it's not an emergency statute. Second of all, its purpose is to make sure that federal agencies critical systems are secure. Doesn't have anything to do with federal agencies taking control from the states of systems. And also the EO has tons of transparency provisions. That's kind of what we were talking about with the voter rolls, getting those from the states. But the EO also says doj, you need to provide access to to the administrators of elections having to do with your criminal databases so that we can make sure that felons don't vote, stuff like that. And the order might actually violate the Federal Information Security Modernization act with those. So it's funny that they invoke it and then the Defense Production act again doesn't work. That has to do with mobilizing private industry toward national defense. And emergency preparedness. Doesn't have anything to do with mobilizing the state systems around whatever you're doing trying to achieve. So that's the way more detail than you need or should want. But that's what they're trying to do to skirt this massive problem that the President has no authority over elections. Their issue again is that they need a point to a statute. There aren't any statutes that give the President authority over elections. So in this draft do they're just pointing to a bunch of sort of random statutes. It's not going to work. They don't have anything to do with elections.

[Benjamin Wittes]

So you're actually making me feel better about this whole thing. We have a bunch of a weird menagerie of Anna's favorite kooky people. They've all gotten together and they've written a piece of gibberish legally. And if the President were to sign would just as the last executive order fared badly in court, this one would fare worse because as you say, it's based on a legal theory that's kind of nonsense. So what is the real risk here?

[Molly Roberts]

Yeah, it's a really good question. So one risk, one big risk is just chaos, right? One big risk is that the President issues this order, he issues it close to the election and it's unclear to states whether they're supposed to comply. It's also possible that red states would go ahead and comply even though their laws haven't been properly adjusted to do this. That they would say, oh yeah, we're going to try to enforce all of that. And also if you try to enforce all of these requirements that close to the election, again chaos, administrative chaos, some of them are just impossible really to enforce. And it could result in people's ballots not being counted or just doubt over the results in the end because he said you were supposed to do this, maybe some states said that they were going to do this and then the results come through and what was followed, what was not followed, what was the law? Actually this is by election deniers who spent and are continuing to spend time and energy after 2020 seeing these false narratives about what happened in that election. Do we just have a repeat of that? So that's one thing. Another possibility is that the White House doesn't listen to the courts. And what does that look like? Again, it's tough when it comes to trying to force states or counties to conform to registration or ID requirement. If you want to do something like ensure that ballots are hand counted, which is a big part of this EO or that mail in ballots aren't tabulated, you'd probably need to send in some form of federal forces. So what would that look like and what would that mean having those federal forces on the ground when it comes to also just voters being intimidated from voting? And then I think the most troubling possibility is that the President could try to seize voting machines or ballots after the election had taken place, saying, well I issued this emergency order, it wasn't followed and it should have been followed. And in order to enforce it, I have to seize voting machines or ballots. So I mean that's a not listening to the courts thing, which would be obviously like a five alarm fire for a ton of reasons.

[Benjamin Wittes]

So Anna, what is your impression of the expectation of, of this group of people? Are they waiting for the President to sign this any day? Or do they. Are they waiting for the SAVE act to fall apart and then the President will step in and sign this? Or do they imagine it's going to be sliced and diced and incorporated into a White House draft? As you've kind of trolled around this group of people, what do you have the impression that they're looking for here?

[Anna Bauer]

I think it varies, but I mean, like, for example, Juan Osavin, I think, is very convinced that, like, I mean, he's been convinced for months that any day now Trump is going to sign this draft executive order. And he has claimed at one point, and this is, I believe this is quoted in our piece, at one point in, in December, on a podcast appearance, he claimed that what he's been told is that 80 to 90% of what is in that 17 page draft executive order that's been circulating is what will end up in Trump's eventual executive order that's based on that. Peter Tickton, meanwhile, when we spoke to him, he made the claim like, one way or another, either whether it's before the election happens or after the election happens, there's going to be an national emergency declared. So there, there, at least with those folks. And then also you can look at statements that people like Michael Flynn or Patrick Byrne have made in which they've also urged a national emergency. I think they think one way or another, eventually it's going to get to a point where, where Trump is going to declare a national emergency and do something with elections related to that declaration. But I can't say with precision that there's an overwhelming view about it's gonna be after the SAVE act vote collapses and that kind of thing.

[Benjamin Wittes]

All right, so let's imagine a nightmare scenario, which is we're much closer to the election than we are now, and the President issues something like this. Details might vary, but something that asserts broad power over elections in the immediate proximity to an election. How quickly do you think the courts could get their ACT together to enjoin it or to, you know, to do something about it?

[Molly Roberts]

So I think fairly quickly, depending on the judge. So those who were challenging the EO would try to file with judges they thought would be friendly to their motions, and then they would probably. You can tell me whether you disagree. But it seems possible that they could get a ruling for a tro, temporary restraining order within hours. It would be going all around the country because the Supreme Court has a span on nationwide injunctions, so you'd probably have equivalent motions all around the country. And I mean, unless he over targeted to the 15 places in which we need to nationalize voting, which is what President Trump has said, then the question would be how fast would this get to the Supreme Court and what would the Supreme Court do? So ideally, the Supreme Court would say we need to move as fast as possible because this is so disruptive, it's so close to the election. But there is a snag, is my understanding, which is something called the Purcell Principle. The Purcell Principle is that the courts can't issue rulings that change election rules when it's super close to an election. And so the question is, how would the Supreme Court look at that? Would the Court, Supreme, Supreme Court say, oh, court shouldn't be changing the rules? Or is the fact that what's disruptive, what's changing the rules so close to the election, the executive order itself, something that would change that? But you guys can chime in on whether you think anything about that is wrong or needs elaboration.

[Anna Bauer]

I mean, I don't even know how close they could do. Like, my question is just like, it seems to me like this whole scheme would be practically like unworkable if they issue it too close to the election, because it will just not be possible to implement some of the things that they want to do with this EO if you do it within 60 days of the election. Like at that point, like elections, you have to do a lot of advanced work with like ordering the ballots and programming the machines and doing all this stuff. And like the way they want to do it would require are all new because like they want to do hand marked paper ballots. Like they, they want to have all these systems that are just like, you would have to do it further than 60 days before the election. Right. Do you agree, Molly?

[Molly Roberts]

I do, which is why I think the biggest threat is chaos. Right. I think it almost doesn't matter whether the courts say, hey, you can't do this, because what are they saying? Hey, you can't do that. The administration or states would practically be able to do so. Again, I think that for a lot of it, you really can't do it ahead of time. Although I do think the issue is if you claim that a bunch of voting machines that are being used are all of a sudden invalid, then decertified, then what does that mean? What does that mean for the votes that were cast? So you still need and want something from the courts that says, no, actually we can count those votes. Right? So there are little bits of it where I think that it matters that the courts chime in. And then there are other bits where I think that I just don't know how you would possibly achieve it, meet that administrative burden so close to the election. But I think that if you have states who day of are saying, oh my gosh, we don't know whether we can count these ballots, then you want ideally a court ruling as soon as possible that tells them whether they can or can't.

[Benjamin Wittes]

We are going to leave it there. Anna Bauer, Molly Roberts, thank you both for joining us today.

[Molly Roberts]

Thank you.

[Benjamin Wittes]

The Lawfare Podcast is produced by the Lawfare Institute. You can get ad free versions of this and other Lawfare podcasts by becoming a material supporter of Lawfare at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Jen Patia and our theme music is from Alibi Music. As always, thanks for listening.

[Molly Roberts]

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