The following is a lightly edited transcript of the August 12 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
In an interview with a MAGA media personality, Donald Trump lets slip that he’s considering declaring a national emergency to take over the midterms. This is partly bluster, but we should take it seriously. It comes as Republicans privately fear Trump’s rage is boiling over their failure to pass voter suppression legislation. He’s clearly looking for new ways to steal the election this fall.
So what can Trump actually do if he does try to go full dictator and seize control of the midterms? How far can he get? What impact might it have even if he fails? What can we do to prepare? We’re talking about all of it with election law expert Rick Hasen, who’s one of the best out there at explaining this stuff. Rick, good to have you on.
Rick Hasen: Great to be with you.
Sargent: So just to set the table here, the Senate went into recess without passing Trump’s SAVE Act, which could disenfranchise millions if it did pass. Politico reports that Republicans are now bracing for Trump’s, quote-unquote, “wrath.”
They expect Trump to explode again with more demands for the SAVE Act, and they fear that’ll turn off MAGA base voters they need to turn out in the midterms. Rick, what do you make of all that?
Hasen: Well, yeah, it’s been really one of the president’s priorities for months. He’s obsessed with election fraud. Whether he believes it or not, he talks about it constantly. And what the SAVE America Act, as it’s now called in its most recent iteration, would do, among other things, is require everybody to potentially re-register to vote, providing original copies of their birth certificates, maybe their marriage licenses, their naturalization certificates. It would be a hugely disenfranchising law if it passed.
But it’s stuck. There are not even 50 Republicans who support it. So there are Republicans like Lisa Murkowski and Mitch McConnell, both of whom have reasons to oppose it. So forget about blowing up the filibuster, which is what Trump wants the Senate to do. There’s just not even enough support on the Republican side to get this thing passed with a majority vote.
Sargent: Right, this thing isn’t happening, and that’s the context for this. Trump was talking to Wayne Allyn Root, a MAGA personality. Root suggests that Trump declare a national emergency to take over our elections. Then Root says the Supreme Court has precluded Congress from overriding such declarations. And listen closely to the end, where Trump says, “stranger things have happened. I’ll leave it at that.” Check this out.
Wayne Allyn Root (voiceover): You have the right to declare a national security emergency for elections. And the Supreme Court ruled in 1983, under Reagan, that INS versus Chadha—that if you declare a national security emergency as the president of the United States, they can’t challenge it. It can only be overturned by a two-thirds vote of both houses of Congress. So if you do this in the next month, we will get photo ID, proof of citizenship, and a limit to mail-in ballots, and you don’t—
Donald Trump (voiceover): Stranger things have happened, I’ll leave it at that.
Root (voiceover): All right, we’ll leave it at that.
Sargent: So you heard that, right? Trump says clearly, “stranger things have happened, I’ll leave it at that,” Rick. So let’s just break this up into pieces. Before we get into the details about what this would entail, Trump is letting it dangle out there that he’s really considering this, right?
Hasen: Yeah, I mean, he’s just constantly saying things. You may remember months ago he talked about nationalizing the elections and taking over elections in 15 states. So he’s constantly making claims that maybe he’s going to do something related to the midterms.
And his new attorney general, Todd Blanche, won’t preclude the idea of sending ICE agents to the polls. Now, I don’t think that’s going to happen, but they’re dangling all kinds of stuff out.
Sargent: Right, and he is clearly letting it be known that he’s considering declaring a national emergency over our elections, yes?
Hasen: He is. It might be for internal MAGA consumption too, but he’s certainly not excluding that possibility.
Sargent: Right, so let’s go through this. When presidents declare national emergencies, it unlocks powers that Congress has already created in other statutes, which presidents can then wield by virtue of having declared the emergency. In general terms, Rick, what sort of powers do these tend to be?
Hasen: So Trump has declared a national emergency at the border. He did it in his first term and he did it now. And that might free up some money. That might allow him to take congressional appropriations that were otherwise going to be used for some purposes and use them for other purposes. So there are—by, I think it was a count by Just Security, the great website—50 different powers that could be invoked.
None of them have anything to do with elections. But there, yes, definitely presidents can and do invoke the term “national emergency,” and it does give them additional powers to do certain things. And Congress has given that power. And it’s true that Congress couldn’t take that power away, unless the president agreed, or unless two-thirds of both houses of Congress passed some legislation to do that.
Sargent: Well, the rub here is that declaring a national emergency wouldn’t unlock any presidential powers over elections specifically, right? Even though it would unlock a bunch of other powers, just nothing over elections specifically. Can you walk us through that piece of this? Why doesn’t it do that?
Hasen: So there are two reasons why declaring a national emergency doesn’t make Donald Trump the election czar in this country. The first is, there’s no federal statute—of all those 50 statutes that deal with national emergencies, none prescribe any powers to the president over elections. The other reason is even more fundamental.
The Constitution, the United States Constitution, does not give the president power over elections. We have a decentralized election system. Most of our election rules come from states, from state legislatures passing statutes.
There’s a part of the Constitution—it’s in Article I, Section 4—it says that Congress can override state rules on elections. That’s when Congress, for example, requires motor voter—people can register to vote at motor vehicle departments. But Congress has to do that with legislation. The president has no role to play. All that the president can do is take care to assure that the laws that Congress passes are being faithfully executed.
Sargent: Exactly. So before we get to the bigger picture here, Wayne Allyn Root made this claim about the Supreme Court ruling that Congress can’t override declarations of national emergencies. Can you explain just briefly what he thought he was saying there?
Hasen: So the bottom line here is that Root thinks that if Trump declares a national emergency and tries to take over elections, Congress can’t stop him, because they need both houses of Congress on a two-thirds vote to stop him. The problem with that logic is simply that declaring a national emergency never gave Trump the power over elections in the first place. So there’s nothing for Congress to overrule.
Sargent: Yes, that is exactly what he thought he was saying, and you really laid bare, I think, how preposterous it is. The crux of this, though, is that we shouldn’t shrug about it.
You wrote on your Election Law Blog, which is excellent—everyone should check it out—that Trump has other motives for letting it dangle out there that he might declare a national emergency, even if the idea is bogus. What are those other motives? Can you walk us through that?
Hasen: Yeah, sure. So one thing that I think he’s trying to do is to please his MAGA base. They’ve been pushing for a long time to have Trump declare this national emergency. In fact, there was some group that sent him a draft executive order that was going to do just that and totally take over elections. That document was leaked to The Washington Post. Trump never did anything about it. So he’s trying to please the MAGA base, keep them thinking that he’s going to do something.
Second thing is that if the Democrats actually win control of both houses, or even one house of Congress, in November, they’re going to make Trump’s last two years very unpleasant. And so he is trying to delegitimize in advance those Democratic victories. I tried—I told you we should have fixed the elections, Democrats cheated, what they’re doing is illegitimate. So to try to prebunk that.
And the last thing I think that it does is, he’s trying to scare people. He’s trying to scare people into thinking he has more power than he has. That itself makes him powerful, because people are deterred by him. And maybe it deters people from showing up to vote in elections. Hey, are there going to be ICE agents at the polling place? Is my ballot not going to count? Why bother voting?
And I think that’s extremely dangerous. So these are all things—I agree, we should not be complacent at all, even if Trump doesn’t have the power to actually do some of the stuff he’s threatened.
Sargent: Yeah, and I think that you very neatly get at what the role of ICE is in all this. ICE is very terrifying, for good reason, to a lot of people in the United States of America now.
So whenever Trump says maybe ICE will be at the polling places, then they’re hoping that people will just not want to run into masked, heavily armed thugs in the process of exercising their right to vote. And I think that’s really what this is about—it’s to frighten us all into believing that we don’t have an electoral system anymore, that they’ve won, basically. What do you think of that?
Hasen: Yeah, I think Trump has managed to do a double whammy, right? On the one hand, he’s convincing his supporters that the elections are rigged and that they can’t be trusted. And then when Republicans try and take actions to secure the election system, like trying to pass the SAVE Act, well, then Democrats think he’s trying to rig the elections.
And so everybody’s confidence in the elections goes down. And it’s like, why mail back my ballot if the post office isn’t going to deliver it? Why show up at the polling place if there’s going to be armed security there? All of these things are, I think, scare tactics. And we shouldn’t give Trump the power—we shouldn’t give Trump room in our heads to panic over whether or not we’re going to have free and fair elections.
Sargent: I think there’s another element to this I want to get at as well. There’s a tendency of the press and a lot of liberals to look at this kind of thing and say, it’s bluster, it’s Trump using his magical distraction powers, et cetera, et cetera.
But I think it should be hugely controversial that he would even say he’s considering these things, because he’s revealing a very profound contempt for our democracy, and really a profound contempt for you and me, Rick, as voters. Contempt for millions and millions of voters across the country. And I think we should say loudly how vile it is for him to do that. What do you think?
Hasen: Well, you may remember that back in 2016 and in 2020, he said he wouldn’t accept the results of the election unless he won. I mean, this is just banana republic stuff. It’s terrible stuff. And I should say, there are things that Donald Trump might try to do to try to manipulate the election outcomes that I’m very worried about. Not ICE agents at the polls, but trying to interfere with the certification of election results or the tabulation of ballots.
Trump’s got a lot of levers. These are not legal levers, mostly. They’re things that would be illegal. But one of the things I’m really worried about is: what if he tries to have his Department of Justice seize ballots in a live election? That would be terrible. So we have to be on guard. This is not a moment of complacency, even if it’s true that the courts would say Trump has no power to nationalize our elections.
Sargent: And just to go back to your earlier point about sowing doubts in the legitimacy of elections—that has the ability to function later as a pretext for him doing those things that he could do, such as seize ballot boxes, right?
Hasen: Absolutely. And so I think, you know, at every opportunity we have to point out that Trump doesn’t have this power, and point out how illegitimate it is for him to try to exercise it. One of the levers that Trump is trying to use right now is, he’s trying to order the United States Postal Service not to deliver mail-in ballots from states that don’t comply with a set of rules that he’s ordered the Postal Service to put out. He’s also ordered the Department of Homeland Security to come up with lists of citizens that states are going to have to compare to their own list, or face criminal liability potentially.
Whether he’s going to be able to do any of this is currently before the United States Supreme Court, in an emergency motion where Trump is trying to be able to do this before the elections. Now, I don’t think he’s going to be able to succeed, in part because it’s too late. Our election administrators are already getting ready to run our elections.
But it shows you he’s using every tool, whether that’s executive orders, whether that is his bully pulpit, whether that is his various departments of his government that are trying to get voting rolls. All of this is of a piece that is really trying to exert whatever power he can over how elections are run, despite the fact the Constitution gives him no power in this area.
Sargent: So Rick, what can we do right now to prepare? What would you suggest to rank-and-file voters out there who are very worried about what’s about to happen, but really adamantly want to do their part to whatever degree they can right now to prevent this madman from pulling off anything like that?
Hasen: Well, I mean, one thing to do is to make sure you’re registered to vote, and to actually vote. And you know, it’s—checking your registration, with all of these Trump pressures on voter registration, I’m worried about states dropping people from the voting rolls who are eligible to vote. So make sure you can vote. That’s like the number one thing.
But also, I think, you know, support those organizations that are fighting Trump on issues like whether he has any power over elections. There’s been a lot of litigation already, and it’s going to continue probably through the election. And because our elections are so decentralized, there’s lots of opportunity for people to get involved, as either poll workers or as observers, either for a party or with good-government groups. There’s election protection work to do. There’s a lot of things to do.
And if Trump actually tries to do something to interfere with elections, that’s the time that the public is going to need to be ready to go to the streets if they need to. I really don’t think that’s going to be necessary, because I think there’s going to be enough pushback before that. But our democracy’s not going to protect itself.
Sargent: It does appear as if civil society is fully engaged here, and I’ve got to say, I see democratic resilience in all that. Folks, if you want more of Rick Hasen, make sure to check out his blog, Election Law Blog. It’s chock-full of stuff like this. Rick, always good to talk to you. Thanks so much for coming on.
Hasen: Thanks for the opportunity.
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