“We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, US attorneys, and we’re going to have everybody and attorney generals (sic),” Trump said.
Facts First: If history is any indication, Trump could run into some legal issues on this. Any conduct that intimidates voters is prohibited by federal law and several states expressly forbid law enforcement presence at the polls. Per a Department of Defense directive, DoD and National Guard personnel must also refrain from conducting “operations” at polling places. Furthermore, the President does not have the authority to send local sheriffs anywhere and sending armed federal law enforcement to the polls could result in violations of US criminal code.
“Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.”
Edward Foley, director of the Election Law program at Ohio State University’s Moritz College of Law, told CNN the President may not technically be subject to this criminal prohibition, but others involved in enacting the orders would be.
“The way it’s written, it’s unclear, and arguably the better reading of this would exempt the President,” Foley said. “It would definitely be a violation for the intermediate people who made the orders. If Attorney General Barr ordered the armed FBI to the polls, that would be a violation of this statute.”
“The implication of the word sheriff and law enforcement to my mind is armed officers,” Foley added. “And that’s what’s prohibitive.”
In response to Trump’s comments, CNN contributor and American University law professor Steve Vladeck also cited the criminal statute. “What Trump is proposing is not just offensive; it’s also illegal,” Vladeck tweeted.
While Trump mentioned sheriffs, which are usually a local position, Foley clarified that the statute only applies to federal law enforcement, noting that under the 10th amendment, “the President of the United States has no power whatsoever to order sheriffs to do anything.”
There is some historical precedent here. Similar efforts by Republicans nearly 40 years ago led to a 1982 consent decree that prohibited some of what Trump suggested, unless it had prior judicial approval. That agreement however expired in 2018. Here’s a bit of the backstory:
The agreement between the Republican National Committee, New Jersey Republican State Committee and their Democratic counterparts was a result of the Democrats accusing Republicans of sending off-duty police officers to patrol polling places in an attempt to intimidate voters, especially in minority communities. This is the first Presidential election these nationwide restrictions blocking Republicans from providing those so-called ballot security measures are no longer in place.
