The Midterms Are Being Won in Court

Two weeks before Americans vote, a Justice Department lawyer stood in a federal courtroom and argued that the Presidential Records Act of 1978 — the law that makes a president's papers public property, saved for history and eventually for investigators — is unconstitutional, and that a president's records are simply his personal belongings ^[1]. Judge Patricia Millett wanted to know where that logic ends.

Can the president then offer on eBay to sell them, all of our national security secrets to the highest bidder? — Patricia Millett

Days earlier, the same department announced the largest deployment of federal election observers in its history ^[2]. All year it has been demanding transparency from everyone but itself, suing at least 29 states to force them to surrender unredacted voter rolls ^[3]. Federal judges blocked those demands six times in 2026 ^[4], and one of them was blunt about what the department was really asking for.

The Department of Justice seeks to use civil rights legislation which was enacted for an entirely different purpose to amass and retain an unprecedented amount of confidential voter data. — David Carter

One client, then, making opposite demands about who must be transparent. This is the shape of the 2026 midterm: the first American election run primarily as a legal campaign, and run that way by both sides at once. The integrity side of the operation is not a bluff. By late September the federal crackdown on noncitizen voting had produced more than 200 arrests and indictments, 1,620 Homeland Security investigations, 70 indictments or convictions of noncitizens, and a review of 300,000 voter records against citizenship data ^[5]. The wider voter-roll initiative has reviewed rolls from at least 47 states ^[6]. Harmeet Dhillon, the civil-rights chief running the operation, framed the sweep in studiously nonpartisan terms.

Whether they voted for a Republican or a Democrat, we don’t care. What we care about is that noncitizens who voted in a federal election canceled out the votes of American citizens. — Harmeet Dhillon

And the machinery has genuine takers. North Carolina's election board voted to cross-check its rolls against the federal SAVE database — the system states use to verify citizenship — with its director describing it as one of the few tools available for finding noncitizens on the rolls ^[7]. Republican election officials resisted the data demands too: West Virginia's Kris Warner refused, Missouri's Denny Hoskins would comply only under court order, and only Alaska and Texas signed the federal memorandum ^[8]. But the base under the crackdown is thinner than its scale. The initiative claims 278,000 noncitizens registered nationwide ^[6]. Reuters found software glitches and clerical errors may have mistakenly added roughly 30,000 noncitizens to rolls across a dozen states since 2000, and experts and the Census Bureau's own research suggest the numbers are too small to influence a national result ^[5]. The fraud is real but small — and the campaign is being run at the scale of a fraud much larger than the one it has found. The same building is running a second operation, pointed the other way. In late August the Office of Legal Counsel — the Justice Department office that tells the executive branch what the law is — issued a memo extending executive privilege, the doctrine that keeps a president's conversations private from Congress, to private advisers, so they too could resist subpoenas ^[9]. The records case argues a president's papers are personal property, which would put them beyond any future investigator's reach ^[1]. The department also settled a case that bars the IRS from auditing the president and his family ^[10]. Some read the timing of all this — weeks before a possible shift in control of Congress — as deliberate. Part of the intent is on the record. In early October, Trump told TIME he was open to pardoning his own officials before leaving office, explicitly to pre-empt the investigations Democrats are preparing — and he cited Joe Biden's January 2025 preemptive pardons, issued to people who had never been charged, as his precedent ^[11].

Well, Sleepy Joe Biden, he gave pardons to everyone. — Donald Trump

The White House installed Will Scharf as counsel and Katie Bailey as legislative-affairs director specifically to coordinate with Capitol Hill ^[12], and cabinet secretaries down to midlevel staffers have hired private lawyers ahead of the vote ^[12]. As early as May, the counsel's office was briefing appointees by PowerPoint on the mechanics of congressional oversight — how to answer an inquiry, how to keep records ^[13]. A counsel's office teaching subpoena mechanics in slide form, months before Election Day. And where the two fronts physically meet: the division running all of this was gutted and refilled in the run-up to the vote. More than 300 career attorneys left, and roughly 130 new hires came in ^[14]. Democrats have answered in kind rather than in argument. House committees are preparing investigations into 26 topics across 11 committees, with impeachment articles already pre-filed and resolutions aimed at cabinet members including Pete Hegseth and Linda McMahon ^[15]. Election lawyer Marc Elias's firm is running 87 cases across 43 states ^[16]. A Senate task force is gaming out roughly a hundred interference scenarios ^[16]. Democratic observer groups are heading into polling places ready to record what they see, explicitly to support potential lawsuits ^[2]. And in May, California Democrats urged supporters to hold their ballots late to lock Republicans out of a primary — a push the state's own attorney general warned could be unlawful ^[17]. The courts are the only institution still playing referee, and they are now the field as much as the referee. Lower-court judges blocked the roll demands ^[4]; the Supreme Court stopped the plan to screen mail-ballot applications through the Postal Service ^[18], while letting large-scale citizenship checks against the SAVE database go forward ^[6]. The referee's calls now decide who gets to vote and who gets to watch. The cost is visible at the human scale. When the department sent 20 monitors to Minnesota's primary, two counties barred them under state law, and Attorney General Keith Ellison turned the state's own observers on the federal teams ^[19].

Out of an abundance of caution, my office will be observing the seven teams of federal observers to ensure that they and everyone respect state law and that every Minnesotan who is eligible to vote to register to vote has free access to their polling place. — Keith Ellison

Down at the clerk's counter, the preparation is concrete: bulletproof glass and panic buttons, and Detroit's city clerk under round-the-clock police protection ^[20]. Both sides now reach for the other's precedent the way each round of a fight quotes the last one: Trump justifies preemptive pardons by pointing to Biden's, and Democrats justify pre-filed investigations by pointing to Trump's. That is what a cycle feeds on. The next round is already staged — lawyers retained, complaints drafted, scenarios run on tabletop. Two weeks from now the voters will pick who controls the committees and the certification offices. The case itself is already in motion, and nobody is waiting for the count.