Jack Smith should investigate Trump’s current election behavior

WE’VE BEEN HERE BEFORE. The pre-election public record is full of signs — 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 now.

Any legitimate, factual, legal challenge to a certain number of votes is not the issue. The alarm stems from ominous indications that Trump will try to second-guess the works each stage of counting votes, state-by-state Electoral College meetings and electoral 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 at home and — in a January 6 redux — at the Capitol. Threats to election officials have already intensified.

Is there a reported factual basis enough to warrant the FBI opening a preliminary investigation into the potential for reckless election interference. When there is adequate “prediction,” DOJ rules authorize investigators to begin their work before the suspected crimes are completed. Gathering evidence before it’s gone or before memories fade is sound investigative methodology.

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Under the Attorney General FBI Internal Operations Guide, a preliminary investigation may begin based on information indicating that “(an) activity that constitutes a federal crime or a threat to national security. . . can take place or . . . may appear (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 investigation involving a political candidate is considered “sensitive” — so the highest levels of the Justice Department, sometimes including the Homeland Security Division, must be notified and must be approved.

In accordance with the DOJ electoral sensitivity policya new investigation will not be announced before election day to avoid the 2024 version of the 2016 one. Jim Comey’s disaster. However, should news of the investigation leak, it would likely trigger a huge political outpouring from the former president and his supporters, who will howl that the current administration is orchestrating the “interference.”

But the pursuit of justice cannot bow to political pressure. And there is a strong case for the DOJ to act.

Start with context. Trump has done it before. Look at the Jan. 6 House committee compelling evidence. Or consider two indictments to DC grand jurywho found probable cause to believe that Trump conspired criminally after November 2020 to defrauding the United States by affecting his legal functions and to violation of civil rights of most Americans.

Or reflect on what’s happening now like Trump refuse to say that he will accept the results of the 2024 election, just like he did before the last election. There are cascading indications of a much better organized effort by Trump and his team this time. The Republican National Committee, co-led by the former president’s daughter-in-law Lara Trump, is expressly activating an army of “watchers” targeting cities with a majority of Democratic voters. Last election, such “spotters” overwhelmed the Detroit vote counting center, among other places, and harassed the mostly black poll workers there.

Then we have a growing band of election deniers occupying local and state electoral commissions. Any student of political organization understands that aberrant election officials who systematically appear in separate locations do not happen spontaneously. In all, Trump’s GOP recruited more than a dozen of fake voters from past elections to serve as voters this time. Former Acting Solicitor General Neal Katyal Put L last week in short:

Troubles are no longer amateurs. They have spent the past four years becoming professionals, meticulously crafting a strategy on multiple fronts. . . to overturn any close election.

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

Prudence would justify an express expansion of the special counsel’s mandate in an Attorney General’s directive, as provided by DOJ regulations.

Finally, there is a legal reality that Smith knows well. If Donald Trump loses the election, and if there is reason to believe he has committed another round of election-related crimes, a subsequent prosecution could proceed much more quickly than the current one. After all, with respect to criminal conduct in 2024, Trump will receive no cloak of presidential immunity modeled by the John Roberts Court, as he received for his election schemes in 2020. For any efforts to steal the 2024 election, private citizen and candidate trump should face justice based on facts and law. This time, Trump is acting at his peril.

Donald B. Ayer he was deputy attorney general under George HW Bush and senior deputy attorney general in the Reagan administration.

Philip Allen Lacovara is a former Assistant United States Attorney General for Criminal and Homeland Security Affairs, ex counsel to the Watergate special counseland past president of the District of Columbia Bar Association.

Dennis Aftergut is a former federal prosecutor, currently an advisor to the Lawyers Defending American Democracy.