Why is an official overseeing criminal cases leading DOJ’s assault on California ballots?

The Department of Justice (DOJ) official leading the Trump administration’s assault on California’s mail ballots manages the department’s criminal investigations. 

The involvement of the official, R. Trent McCotter, who oversees criminal as well as civil litigation — along with another DOJ official who led a Florida office aimed at bringing criminal cases over illegal voting — highlights a troubling escalation in the department’s voter suppression strategy.

It shows DOJ is aiming to intimidate election officials by suggesting the California ballots issue is a criminal matter — something it made clear in a letter to the state sent late Friday. And it signals the department may be looking to lay the groundwork to obtain a criminal warrant to seize ballots — a concern raised this week in separate litigation.

Meanwhile, no one from the Civil Rights Division, which, as is typical, has led the department’s voting cases so far, was listed on DOJ’s complaint against California filed Thursday*.

McCotter, the acting deputy attorney general, has emerged as one of the Trump administration’s most prominent legal figures in its escalating intervention in the 2026 election. McCotter has spent years in the conservative legal movement, including work on Project 2025 and litigation tied to election denial, voter deception and efforts to challenge voting rules.

DOJ did not immediately respond to an inquiry about McCotter’s involvement, and the lack of involvement form the Civil Rights Division.

In a letter sent Friday to Los Angeles County, McCotter made the threat of criminal prosecution over the ballots issue more explicit than ever. 

He warned election officials that they could risk becoming “aiders and abettors to a federal crime” if they knowingly tabulate ballots cast by people on the government’s list.

“The legal consequences for either facilitating or ignoring a federal crime are significant,” McCotter wrote, arguing that state and local election officials were now on “actual notice of noncitizen voting” and warning them of “significant federal scrutiny and legal exposure.”

The warning is particularly notable because DOJ’s own lawsuit against California describes the people on its list as “likely noncitizens,” not people who have been conclusively determined to be ineligible to vote.

“They will all go to jail for a long period of time,” President Donald Trump wrote on social media, promoting McCotter’s letter. 

McCotter first signed Oct. 13 letters giving California officials just 48 hours to act on a list of people the federal government said were “likely noncitizens.” His name then appeared atop DOJ’s lawsuit filed Thursday seeking to stop California from counting mail ballots from roughly 20,000 federally flagged voters.

In a separate federal case seeking records about possible DOJ plans to seize ballots or voting equipment during the midterms, the Democratic National Committee (DNC) pointed directly to McCotter’s role in the California case.

The DNC asserted Wednesday that because McCotter supervises the Criminal Division, his earlier threat of emergency action against California “appears to be a plausible threat that DOJ will attempt to engage in warrant-based ballot seizure.”

DOJ has not publicly revealed plans to seize ballots. The Criminal Division told the DNC it found no responsive records, while the FBI and DOJ leadership offices are still searching.

Civil election enforcement has traditionally been centered in DOJ’s Civil Rights Division, whose Voting Section enforces laws including the Voting Rights Act, National Voter Registration Act and Help America Vote Act.

But Harmeet Dhillon, the assistant attorney general who leads the Civil Rights Division, is not listed on the California complaint, although she has been listed on numerous voter roll cases brought by DOJ. Nor is any other official from the division. 

To be sure, as deputy attorney general, McCotter also manages “civil litigation under the direct responsibility of the Associate Attorney General,” according to the department’s website. 

Associate Attorney General Stanley Woodward is not listed on the complaint brought against California, though Andrew Darlington, Counsel to the Assistant Attorney General, is listed.

But Darlington, too, has a background in criminal election cases. Before joining DOJ last year, he served as director of the Florida Office of Election Crimes and Security, which was created by Gov. Ron DeSantis (R) to bring prosecutions for alleged illegal voting. 

The lawsuit against California itself is civil, but its substantive theory relies heavily on criminal law. DOJ is seeking to use the federal prohibition on noncitizen voting, 18 U.S.C. § 611, to prevent California from counting the flagged ballots. McCotter’s latest letter goes further by invoking the federal aiding-and-abetting statute, 18 U.S.C. § 2, directly against election officials.

McCotter, who briefly served in DOJ during Trump’s first administration before moving into private practice and then returning, has personally participated in DOJ’s broader campaign to intrude in state-run election administration.

In March, internal emails show him coordinating a department-wide “election integrity” report with Civil Rights Division officials and saying he had “looped in” the division as the administration developed its election agenda.

He has also used criminal enforcement actions to promote the administration’s broader voting agenda.

At a September press conference announcing charges against a former Utah postal worker accused of discarding mail bags that included ballots along with other mail — conduct officials said was not politically motivated — McCotter quickly moved beyond the alleged crime.

He defended Trump’s blocked mail-voting overhaul, criticized a federal judge who halted it, attacked states without photo-ID requirements and criticized automatic voter registration systems.

The episode offered an earlier example of McCotter using criminal election enforcement to advance the administration’s policy fights over voting. His role in California now brings those two tracks even closer together: DOJ is pursuing a civil lawsuit while McCotter simultaneously warns the election officials being sued that their conduct could expose them to federal criminal liability.

Before returning to DOJ, McCotter built a résumé deeply embedded in right-wing legal circles.

He is listed as a contributor to the Heritage Foundation’s Project 2025 “Mandate for Leadership.” Records obtained by American Oversight show that a Heritage fellow recruited McCotter in 2023 to help draft “detailed regulatory items” for the project and told him that contributors who demonstrated commitment could gain recognition from people likely to influence personnel decisions in a future administration.

McCotter testified before Congress last year in a hearing on birthright citizenship, arguing that Congress has the authority to confer citizenship by statute.

McCotter also represented prominent 2020 election denier Steve Bannon in his Supreme Court bid to remain free while appealing his contempt-of-Congress conviction for refusing to comply with the House Jan. 6 committee. The Supreme Court denied Bannon’s request in June 2024, and he reported to prison days later to serve a four-month sentence.

He also represented One America News in litigation brought by voting-technology company Smartmatic over the far-right outlet’s false claims about the 2020 election. Court filings identify McCotter as counsel for Herring Networks, OAN’s parent company. The case ended in April 2024 with a confidential settlement and voluntary dismissal.

And McCotter appeared for America First Legal in litigation involving Douglass Mackey, the alt-right social-media influencer convicted after posting deceptive 2016 election messages telling Hillary Clinton supporters — including messages aimed at Black and Spanish-speaking voters — that they could vote by text.

The Second Circuit Court of Appeals later overturned Mackey’s conviction, finding insufficient evidence that he knowingly joined the charged conspiracy. McCotter was among the lawyers appearing for America First Legal as an amicus supporting Mackey.

*The Elias Law Group (ELG) is representing pro-voting groups who have asked the court to be added as intervenor-defendants to DOJ’s lawsuit against California. ELG firm chair Marc Elias is the founder of Democracy Docket.