The November midterm elections may serve as more than just a reflection of which party America’s voters want to control Congress. They may also be a test of how much our law enforcement and domestic security agencies have learned from the lapses that led to last year’s Jan. 6 U.S. Capitol riot.
The prospect of highly contentious battles over certification of election results, particularly in key U.S. Senate races, coupled with the real possibility that the House select committee will have made criminal referrals of high-profile Jan. 6 instigators, portends a volatile threat environment that will challenge law enforcement to get it right this time.
Trump won’t be on any ballot in the midterms, but his strategy to sow confusion and stoke anger over election results could again serve as a kind of template for terror.
Meredith McGehee, a longtime advocate of campaign and election reform and previously executive director of the government watchdog group Issue One, said it succinctly in a Roll Call article: “There is the possibility that we could have midterm elections and a large swath of Americans — not the majority — who are doubting the validity of the outcomes.” In the same piece, reporter Kate Ackley wrote, “The success of American democracy hinges on voters’ confidence, or trust, in the electoral system. Without that confidence, turnout could plummet — and, as Jan. 6 proves, violence and lawlessness could erupt.”
Former President Donald Trump won’t be on any ballot in the midterms, but his strategy to sow confusion and stoke anger over election results could again serve as a kind of template for terror, particularly if he or his cronies are facing indictment for what happened last January.
Sen. Rand Paul, R-Ky., recently presaged one possible Republican approach to misshaping perceptions about election results when he claimed the Democrats “stole” the 2020 election by legally funneling legitimate donations into key precincts and ensuring widespread ballot availability. If those lawful campaign techniques constitute “stealing” an election, then the actual vote tallies in the midterms may not matter as much as people’s manipulated perception of those results.
Beyond attempting to create distrust of election results, the GOP is also working to control the officials who oversee the elections. That also increases the odds of voters crying foul over the midterm elections. The ways states certify election results vary, but the election officials, secretary of state or governor must sign a certificate of election in the case of U.S. House or Senate results. Roll Call’s report noted that Trump followers are running to jettison secretaries of state and other election overseers who would have to certify votes in U.S. Senate races: “In Georgia, Rep. Jody B. Hice, for example, decided against seeking another House term and is instead challenging Secretary of State Brad Raffensperger in a GOP primary.” Arizona Secretary of State Katie Hobbs, a Democrat, was stripped of her power to litigate any election results by that state’s Republicans.
While the warning signs are ominous for Jan. 6-like violence to play out in certain states or against other Washington targets, particularly in connection with the midterms, there are plenty of scenarios for success — if law enforcement is ready. Yes, there are plausible risks and threats, but there are also logical and effective responses to a foreseeable future fraught with volatility.
Law enforcement agencies frequently conduct tabletop exercises to prepare for and anticipate potential problems and appropriate countermeasures. In that spirit, let’s run through our own set of scenarios and solutions that depict what could and should happen if the FBI, Department of Justice, Department of Homeland Security and Department of Defense are to head off another Jan. 6.
Risk: Violence at statehouses or election offices
Fueled by coordinated accusations of impropriety involving extremely close midterm U.S. Senate races in battleground states — like Georgia, Arizona and Florida — large crowds may assemble, first at county election offices, as votes are tallied — then at statehouses as results are certified. These crowds may include individuals and groups intent on interfering violently with lawful election certifications.
The FBI, anticipating the potential for violence around the midterms, should proactively open a threat assessment to identify potential threat actors and any individuals or groups planning to illegally interfere with lawful voting, vote counting or certification. The DHS should begin disseminating related threat concerns and intelligence to local, county and state police officials and implement regular briefings of those entities as actual threats develop.
The police and the FBI should pre-empt known persons of interest from further criminal planning and related travel by conducting “knock and talk” visits to those individuals to warn them of their potential arrest. Actual arrests should be undertaken when sufficient probable cause is established.
Risk: Social media disinformation
Social media platforms may be used to spread disinformation and conspiracy theories about uncorroborated midterm election cheating, which could fuel violence.
The DHS and FBI should coordinate in advance with social media platforms to include key words and phrases related to the midterms in violence, election interference and propaganda-related algorithm alerts and share those results with law enforcement. Criminal investigations should be opened when individuals or groups are identified as planning to illegally interfere with elections or conduct violence. Uncooperative social media platforms should be served with court orders.
Criminal investigations should be opened when individuals or groups are identified as planning to illegally interfere with elections.
Counterintelligence investigations should be opened to determine if foreign powers are engaged in online propaganda about the midterm elections, and such sites should be publicly denounced and dismantled.
Risk: Governor interference
GOP governors in the most contentious midterm election states might attempt to use either their state guard or the National Guard to seize and/or recount ballots, leading to violent protests.
The secretary of defense should forewarn states that use of state guard or National Guard troops to interfere with duly conducted elections would constitute a misuse of those forces and might lead to him temporarily federalizing those guard entities. If certain governors ignore the DOD admonition, the secretary should federalize the entities in those states.
Risk: Organized violence
If the Supreme Court upholds midterm election results in highly contentious U.S. Senate races and the DOJ announces arrests of those plotting to interfere with those races, the threat of organized violence against those two institutions rises.
If the FBI has not already initiated full investigations against known violent organizations such as the Proud Boys, Oath Keepers and Three Percenters, predicated upon their ties to the Jan. 6 violence, the bureau should be directed to do so by the attorney general as concerns develop over violence at statehouses during the midterms. The full investigations permit informant development, court-ordered wiretaps and use of undercover agents. A threat assessment should also be opened to gather additional intelligence and identify threats against the court or the DOJ following announcement of midterm-related decisions and arrests. This proactive intelligence and investigative postures increase the odds of law enforcement preventing large-scale attacks against iconic government targets.
Further, the FBI, encouraged by the public’s assistance in identifying participants in the Jan. 6 Capitol attack, should solicit the public's help by requesting any information related to threats arising from the midterms and associated court decisions and arrests.
Risk: Attacks in Washington
Sufficient deterrence against the physical attack of Washington, D.C., targets is still not in place.
A quick reaction force — initially recommended in the review of Capitol security following Jan. 6 but never officially formed or announced — should be be established across multiple agencies. That QRF should provide initial tactical response to iconic buildings such as the Supreme Court, U.S. Capitol, the DOJ and the National Archives.
If the violence of Jan. 6 is to be prevented from happening again, law enforcement must demonstrate that it has learned from the lapses that led to that day. That means getting out ahead of the threat: first by detecting the threat, then by deterring the threat and, finally, by defeating the threat.