As the Trump administration waged a public legal fight with California over the ballots of suspected noncitizen voters in mid-October, behind the scenes a federal grand jury in Santa Ana issued a series of subpoenas to election officials in Los Angeles County at federal prosecutors’ urging.

The subpoenas demanded a host of information, from how officials responded to warnings that the Trump administration had identified 20,000 suspected noncitizen voters to how they screen for unlawful voting. Among the demands: any records suggesting “someone has aided and/or abetted an alien voting in a federal election.”

As President Donald Trump’s administration loses round after round in federal court in his quest for authority over state-run elections, the U.S. Department of Justice is turning to criminal investigations as a way to dig deep into documents and records held by election officials. 

Democrats, election officials and legal experts warn the subpoenas are intended to intimidate in the absence of favorable court decisions for the president.

“The mask is off now. There’s clearly no legitimate law enforcement purpose here with regards to the service of these subpoenas, the ongoing litigation,” David Becker, executive director of the nonpartisan Center for Election Innovation & Research and a former DOJ Voting Section attorney, said during a press call Friday. “This is all a political effort at this point, and it’s an effort by what appears to be a desperate administration to interfere with the election.”

The Justice Department sued California on Oct. 15, two days after informing state and local officials that the U.S. Department of Homeland Security had identified 20,000 suspected noncitizens on the state’s voter roll. The DOJ demanded California set aside the ballots of the 20,000 voters and not count their votes unless they can prove their citizenship.

A federal grand jury issued two subpoenas to the Los Angeles County Registrar-Recorder/County Clerk’s office on Oct. 21. A third subpoena was issued on Oct. 24.

An Oct. 24 Justice Department letter accompanying at least one of the subpoenas says they were “issued in connection with an official criminal investigation” conducted by Homeland Security Investigations, a sub-agency of DHS. Los Angeles County officials must provide the information by Nov. 4, the day after Election Day, according to the subpoenas.

States Newsroom obtained the subpoenas through a records request. The New York Times first reported on their existence.

Focus on election officials

A grand jury subpoena represents an intermediate investigative step by the Justice Department. They aren’t as aggressive as a search warrant, but unlike a voluntary request for an interview or documents, they require mandatory compliance, though recipients can challenge them in court. It isn’t clear whether Los Angeles County intends to challenge the subpoenas.

Subpoenas to election officials are not in and of themselves unheard of. State and federal prosecutors sometimes use them to obtain information on voters who may be under investigation for unlawfully casting a ballot or registering to vote.

For instance, lawyers for California Secretary of State Shirley Weber, a Democrat, wrote in a mid-October court filing that her office has received federal grand jury subpoenas for voter records on about 300 people since August.

A Reuters investigation published Wednesday found that the Trump administration has issued more than 100 subpoenas for records on thousands of voters across 13 states. Most were issued within the past three months, and 49 were issued under the authority of grand juries. They arrived after Homeland Security arrested dozens of people across the country on allegations of noncitizen voting.

But recent subpoenas in Alaska and California appear more focused on how election officials are doing their jobs than on data about specific voters.

In Alaska, The Associated Press reported Thursday that grand jury subpoenas were issued in a Justice Department criminal investigation into the state’s U.S. Senate race. Trump has erupted in anger after The New York Times reported Democrats helped recruit Dan J. Sullivan — who shares a name with Republican Sen. Dan Sullivan — to run for Senate. Sen. Sullivan appears locked in a tight race with Democrat Mary Peltola.

In California, subpoenas issued to Los Angeles County officials don’t specify the target of the investigation but the information requested suggests prosecutors are interested in internal discussions over the handling of the list of suspected noncitizens. They direct officials to turn over records related to efforts to prevent noncitizen voting and any evidence that noncitizens have voted.

They also include a demand for evidence of aiding and abetting noncitizen voting — the same language that Bill Essayli, first assistant U.S. attorney for the Central District of California, used during a court hearing Tuesday. 

Threats of prosecution

Essayli warned election officials face “criminal liability” if they aid and abet noncitizen voting by counting their ballots. In turn, U.S. District Court Judge David Carter, an appointee of President Bill Clinton, urged the Justice Department to drop threats against election officials.

“Judge Carter’s admonishment about threats directed at election officials on Tuesday was well placed and appreciated. At every step, the U.S. Department of Justice has taken a confrontational, adversarial approach,” Los Angeles County Registrar-Recorder/County Clerk Dean Logan said in a statement.

Election officials are following state and federal law, Logan said, adding that rulings at the district and appeals court levels have confirmed they are acting legally. He said his office will take whatever steps are necessary to ensure employee safety and to remain focused on serving voters.

“Threats and intimidation have no place in elections,” Logan said.

In a statement, the Justice Department declined to comment on “leaks about alleged grand jury subpoenas.” 

But the DOJ noted a ruling by Carter that emphasized the federal government’s power to prosecute noncitizen voting, as well as court filings by California that say prosecutors have authority to bring criminal cases over noncitizen voting. 

“Thus, while DOJ maintains that a civil remedy is still available, all agree that noncitizen voting is properly addressed through criminal law,” the DOJ said in a statement.

Carter also denied the DOJ’s request for an emergency order and wrote that the Trump administration was engaging in election interference.

Several unions and civil rights groups sued the administration late Thursday over the prosecution threats. In a lawsuit filed Thursday in U.S. District Court for the Northern District of California, the organizations asked a judge to order federal officials to stop “threatening election officials and workers” with prosecution for refusing to segregate ballots of suspected noncitizens.

The lawsuit says the Trump administration has “initiated a criminal investigation into county officials including issuing grand jury subpoenas.”

On Friday night, Judge Trina Thompson, an appointee of President Joe Biden in U.S. District Court for the Northern District of California, issued a temporary restarting order prohibiting the Trump administration from threatening election officials or demanding they segregate ballots.

“Free exercise of the right to vote is a core tenet of our democracy,” Thompson wrote.

California has also questioned the reliability of the data the Trump administration used to develop the list of 20,000 voters. The DOJ says Homeland Security analyzed a public copy of the state’s voter roll and compared voter records to government immigration records and included the use of the LexisNexis research service.

Federal courts ruled against the Justice Department three times in late October.

The 9th U.S. Circuit Court of Appeals ruled against a preemptive appeal on Oct. 26, and Carter denied the DOJ’s request for an emergency order on Oct. 28. The 9th Circuit on Oct. 30 denied a fresh appeal.

Red states enter fray

Eleven Republican-led states have urged federal courts to grant the Justice Department’s demand that California segregate the ballots. In an amicus brief, the states say they have a direct interest in preventing the dilution of the votes of U.S. citizens in other states.

“The Constitution permits substantial differences among state election laws and procedures. But Congress’s prohibition on noncitizen voting in federal elections supplies a common rule that every State must respect,” the states, led by Republican Florida Attorney General James Uthmeier, wrote in their brief.

The other states include Alabama, Arkansas, Iowa, Kansas, Montana, Nebraska, South Carolina, South Dakota, Texas and West Virginia.

In Washington state, election officials received a Justice Department demand Monday to segregate the ballots of about 400 suspected noncitizen voters. Washington Secretary of State Steve Hobbs, a Democrat, said in a statement that a preliminary investigation found the list includes U.S. citizens.

As of Friday morning, the Justice Department hadn’t sued Washington. However, a DOJ letter sent to Hobbs warned the Trump administration would seek “emergency relief” if election officials didn’t comply.

“We are bound by state law,” Thurston County, Washington, Auditor Mary Hall, a Democrat who runs elections for the Olympia area, told reporters on Wednesday. “And state law really does not give us the authority to do what the federal government is asking us to do.”

WASHINGTON — FBI Director Kash Patel sidestepped questions about FBI agents at polling places in the midterm elections at a U.S. Senate hearing Tuesday that also featured a tense exchange between GOP Chairman Chuck Grassley of Iowa and Democratic Sen. Cory Booker of New Jersey.

With the November midterm elections fast approaching and the parties jockeying for control of Congress, several Democratic senators wanted assurance from Patel, under oath, that the FBI would not send agents into polling places.

“Do you pledge that you will not, in any way, interfere in the will of the American people when they go to the polls in November?” Sen. Peter Welch, a Vermont Democrat, asked.

“I pledge unequivocally that I will not participate in your charade of lies,” Patel told Welch.

Patel in addition faced questions during the five-hour hearing from members of the Judiciary Committee about recent changes to the agency’s hiring requirements, an ongoing probe into 2020 election ballots seized in Georgia, and how the FBI plans to handle crimes committed by AI agents. 

‘We have a lackey here’

A boiling point came when Booker spoke beyond his allotted time and name-called Patel a “thug” who “wouldn’t qualify” to be an FBI special agent. 

Booker accused Patel of not answering questions about whether the agency was improperly targeting journalists. The FBI subpoenaed multiple New York Times reporters in July after the outlet published accounts of security deficiencies on President Donald Trump’s new Qatari-donated jet now used as Air Force One. The DOJ dropped the subpoenas later that month after a federal judge pressured the agency.

“My concluding remark is we don’t have an FBI director. We have a lackey here who is using government, and frankly, he’s not even a good lackey. He’s an incompetent lackey. He’s like an 18-year-old kid who wants to join a fraternity that he could never be a member of, doing keg stands and chugging with friends,” Booker said, before continuing the exchange for roughly four minutes more.

“Are you ready to shut up?” Grassley, of Iowa, asked Booker with a raised voice.

 

 

Patel brushed off Grassley’s offer during the exchange to respond to Booker.

“I don’t have much to say. This guy called me a thug. It’s kind of ironic. He’s running for president of the United States. He just got his 20-second ad campaign,” Patel said. “Next.”

Booker told NBC News’ “Meet the Press with Kristen Welker” in March that he’s “definitely not ruling out” a presidential run in 2028.

Grassley thanked Patel for “putting up with what you had to put up with.”

“And I’m sorry I couldn’t control some of them more than I already did,” he said.

Democratic probes promised

Sen. Adam Schiff, a California Democrat, warned a Democratic-led Congress would investigate the FBI’s actions under Patel’s leadership. 

That includes the alleged firing of agents who worked on investigations of the Jan. 6, 2021 Capitol attack and President Donald Trump’s alleged hoarding of classified documents at Mar-a-Lago following his first term.

“The FBI is being sued for wrongful termination. I will remind you, director, because you probably need reminding, that while this Congress is not going to investigate the wrongful termination of potentially hundreds of agents for working on properly predicated investigations, the next Congress will,” Schiff said.

The panel’s Republicans praised Patel for his record at the agency.

Patel said his agency “has made America safer than it’s ever been.”

“Across six America 250 events and this year’s World Cup alone, we welcomed over 12 million visitors to the United States to attend these events. Not one single incident occurred at any single one of these events,” he said during his opening remarks.

Bizarre exchange over FBI hiring

One topic that drew scrutiny from both sides of the aisle was a recent reported change at the FBI that lifted previous disqualifying behavior for special agent recruits, including theft from employers, prostitution and bestiality.

Sen. John Kennedy, a Louisiana Republican, said he understands “the game” of Democrats broaching the subject of bestiality to “make you look bad,” but said he was also “trying to get to the bottom of this.”

In a bizarre and unexpected exchange for a Senate hearing, Kennedy asked hypothetically, “If ‘Joe’ participated in bestiality, not as the animal, but as the human, don’t you think he ought to be disqualified?” 

“If he voluntarily did it, sure,” Patel said.

Kennedy interrupted, “Okay, how do you involuntarily do that?”

Patel said some people are trafficked and forced into “degrading acts of all kind,” but later want to join the FBI.

“But you’re not telling us today that if a human being (voluntarily) had sex with an animal that they can still be an FBI agent?” Kennedy asked.

“No,” Patel responded.

“In fact, they ought to be in jail, right?” Kennedy shot back.

“They all are,” Patel said.

“Yea, well, okay,” Kennedy said.

FBI at polling locations

On the topic of an FBI presence at the polls on Nov. 3, Sen. Richard Blumenthal, D-Conn., told Patel he was “dissatisfied that you are unable to give us an unequivocal, clear, unambiguous commitment that the FBI will be kept out of election interference.”

“You are involved in seven voter-related subpoenas issued to the Nevada Secretary of State’s office, you were involved in seizure of election records from Fulton County, Georgia. Clearly, the FBI has been involved in possible election interference,” Blumenthal said.

FBI agents seized 2020 presidential election ballots in Fulton County in January.

The Trump administration served voter-related subpoenas earlier this month in Nevada.

Welch told Patel he’s concerned about what he’s “willing to do for the president in this year’s midterm elections that the president is already saying are going to be rigged if he loses.”

Moments later Welch asked, “Last month, Congressman and Michigan gubernatorial candidate John James said to podcaster Benny Johnson, quote, ‘I’ve already had a good conversation with my friend Kash Patel, who has said already that the FBI will have a presence leading up to Election Day in Michigan, in both West Michigan and Southeast Michigan.’ Is that true?”

“We have an election crimes community coordinator in all 56 field offices, so you bet we’re going to have them there and manning the posts for election interference,” Patel said.

The exchange continued for several minutes, growing more contentious, as Welch pressed for an answer and Patel said he would not take part in a “charade of lies.”

“Then why are you being such a panderer to President Trump, who’s still claiming that he won the 2020 election, and who has said the only way Democrats can win in 2026 is if they cheat. Do you believe that?” Welch replied.

“I believe in the rule of law. … I want to know how your wealth increased 4,000% since you became a United States senator?” Patel shot back.

“Let’s knock it off,” Sen. John Cornyn, a Texas Republican, chimed in after taking over the hearing for Grassley.

AI hacking

Sen. Josh Hawley, who has shown skepticism of the skyrocketing growth of artificial intelligence, used part of his time to ask how the FBI will handle illegal hacking incidents by AI agents.

Several incidents this summer involved AI agents hacking into other systems, including OpenAI agents that broke into tech company Hugging Face, without explicit instructions to do so.

The recent explosive development of AI has dominated headlines and conversations on Capitol Hill in recent days after top tech executives warned development was moving too quickly to adhere to safety guardrails. Congress has yet to pass overarching AI regulations.

“What’s the role here for the bureau? How, how do you wrap your head around these kind of crimes?” asked Hawley, a Missouri Republican.

“This is a great question. It’s literally the new frontier, and nobody’s really talking about it, so thank you. So a couple things: The president has issued his AI directive on what the government can and can’t use, and that’s the right first step because you don’t want 77 different large language models,” Patel said.

The FBI, he said, has reviewed 140 “test case models” to measure their capabilities and “make sure they are cooperating and following underlying federal statutes.”

“What we need to do on a resource basis is go after the people that created these models that are going rogue,” Patel said.