President Donald Trump has thrown down a fiery ultimatum at California election officials, warning that they could face “jail for a long period of time” if they count ballots from voters his administration believes may be noncitizens. The threat, posted on Truth Social, came alongside a Justice Department letter cautioning state officials about possible criminal exposure. At the center of the standoff are more than 20,000 people the federal government says are “likely” noncitizens who were mailed vote-by-mail ballots in California. The Justice Department has already sued California in federal court, asking a judge to stop the state from tabulating those ballots until their citizenship can be determined. The criminal warning goes further, suggesting that election officials who “knowingly tabulate” such ballots could become “aiders and abettors to a federal crime.” But legal experts who spoke to Newsweek were quick to point out that threatening prison and actually putting someone behind bars are two very different things. Criminal prosecution would require prosecutors to prove much more than the federal list establishes, including that an official knew a voter was ineligible and intentionally helped that person vote illegally. The whole situation reads less like a straightforward legal case and more like a high-stakes collision between federal power and state election authority, unfolding just weeks before Election Day.
In theory, an election official could face prosecution for intentionally assisting a federal election crime. The Justice Department’s criminal warning invokes two federal statutes: 18 U.S.C. § 611, which addresses noncitizen voting in federal elections, and 18 U.S.C. § 2, the federal aiding-and-abetting statute. Acting Deputy Attorney General Trent McCotter told California officials that knowingly tabulating the disputed ballots could expose them to liability as aiders and abettors. But criminal defense attorney Michael T. van der Veen, who represented Trump during his second impeachment trial, explained that an aiding-and-abetting prosecution would require the government to prove the underlying crime occurred, that an election official took affirmative action to assist it, and that the official intended to facilitate it. “It is not enough to show that an official’s actions inadvertently helped someone else commit an offense,” van der Veen said. “There needs to be evidence that the official knowingly participated in the unlawful conduct and acted with the intent to help it succeed.” Mark Graber, a constitutional law scholar in the University System of Maryland, agreed that prosecution is theoretically possible, but emphasized that prosecutors would have to show an official counted the vote of someone the official knew was not eligible. “If the voter’s status is disputed, the official could not have known that the voter is a noncitizen,” Graber told Newsweek. In other words, the federal government’s own language — calling these individuals “likely” noncitizens and saying its analysis is still ongoing — may actually undermine the kind of certainty needed to prove criminal intent.
The biggest legal hurdle may be the word “knowingly.” David Froomkin, a law professor at the University of Houston who teaches election law and criminal law, said criminal liability would require knowing a voter was ineligible, not merely noticing that federal authorities suspected it. “This is not a serious legal claim,” Froomkin told Newsweek. “These criminal laws require a knowing violation of the rules about voter eligibility.” He allowed that an election official could conceivably be liable as an accomplice if they knowingly facilitated voting by someone they knew was ineligible, “but that is clearly not what is going on here.” Graber also called the knowledge requirement “crucial.” Receiving a federal list declaring someone a noncitizen would be evidence, but an official could respond that they believed the list was inaccurate or that they had independent evidence the voter was a citizen. Van der Veen made a similar point, distinguishing between a list that raises questions about someone’s citizenship and proof that an election official knowingly assisted an ineligible voter. “A federal list identifying people as ‘likely noncitizens’ could spark further investigation, but it won’t prove that the individuals are ineligible to vote or that an election official knew a particular person was ineligible,” he said. The government would need communications, records, or anything showing advance knowledge of unlawful voting and intent to assist it. “A general notice or an unverified list is not proof of criminal intent,” van der Veen added. That gap between suspicion and proof is exactly why many legal observers view the prison threat as more political than practical.
California has refused to back down. Secretary of State Shirley Weber wrote that the Department of Homeland Security told her office in July that more than 190,000 registered California voters “may be” noncitizens. Weber said she asked for information about the underlying data and methodology so the state could try to verify the allegation, but DHS officials declined to provide the requested information in writing. The Justice Department later said it had identified approximately 20,000 people as likely noncitizens and demanded that California take steps regarding their mail ballots. Weber objected that voting was already underway and that federal officials had still not explained the basis for identifying those voters. “As you fully acknowledge, ballots have already been delivered to voters and voting is well underway,” Weber wrote. “Despite this, and with less than three weeks before the election, you are demanding unprecedented measures that threaten thousands of Californians’ right to vote, based on unverifiable information or methodology that you still fail to explain or provide.” She also invoked the National Voter Registration Act, which restricts systematic voter-roll removals within 90 days of a federal election, and maintained that the measures demanded by the Justice Department conflicted with federal and state law. Los Angeles County Registrar-Recorder/County Clerk Dean C. Logan raised similar concerns. “The Department of Justice has not provided the underlying evidence, source, or methodology supporting its assertions that individuals identified in its records are ineligible to vote,” Logan said. “We cannot withhold or refuse to count ballots based solely on unverified allegations, nor can we disregard the legal requirements governing our election.” He also noted that the list supplied to Los Angeles County included individuals elsewhere in California, meaning the county did not even have authority over all the records the DOJ identified.
The Trump administration, for its part, defends the voter review and rejects California’s objections. The Justice Department says Homeland Security Investigations and federal partners analyzed publicly available voter-registration records to identify potential indications that noncitizens might have registered, voted, or received election-related mail. According to DOJ, federal officials used multiple data-enrichment and verification methods to assess the people identified. A DHS spokesperson told Newsweek that the department cross-referenced publicly available state voter-registration data with known aliens in federal systems and used multiple sources, including government and commercial third-party data, to supplement those records, further verify identities, and eliminate false positives. The spokesperson also pushed back on one specific claim: “Claims that USCIS used ‘third-party software’ to conduct the analysis are FALSE.” Instead, the spokesperson said, multiple data sources were used to supplement public data, verify the identity of registrants, and reduce errors. DHS stood by its figure of 190,000 potential noncitizens registered to vote in California, while the approximately 20,000 referenced by the Justice Department were described as a subset that had gone through manual verification. “Our message to aliens who vote in American elections is clear: we will find you, arrest you, and you will face the consequences — including criminal charges and deportation,” the spokesperson said. Still, the Justice Department has not publicly characterized all of those 20,000 people as conclusively established noncitizens. Its own announcement repeatedly calls them “likely” noncitizens, and DHS Secretary Markwayne Mullin said the analysis and review remained ongoing. That wording matters, especially in a legal context where knowledge and intent are central to criminal liability.
Election law experts remain deeply skeptical of Trump’s jail threat, describing it as intimidation rather than a realistic legal pathway. Froomkin said states do have federal obligations to update their voter rolls, but officials cannot treat suspicion alone as definitive proof that a registered voter is ineligible. “Unless the state has an individualized reason to believe that a particular voter erroneously registered to vote, it has an obligation to permit that voter to exercise their constitutional right to vote,” he said. If someone were later determined to have voted despite being ineligible, prosecutors could investigate whether a voter-fraud offense occurred, but that is a different question from punishing election officials in advance. Samantha Trepel, Rule of Law program director at the States United Democracy Center, condemned the administration’s actions in stronger terms. “The Justice Department has a responsibility to enforce the law based on evidence. Instead, DOJ is using the threat of investigations and criminal prosecution to intimidate state election officials who are just doing their jobs,” Trepel said. She noted that noncitizen voting is already illegal and exceedingly rare, and accused the administration of trying to interfere with how states run elections and undermine confidence in results before voters even cast their ballots. As for how realistic Trump’s imprisonment threat actually is, Graber answered bluntly: “Political puffery.” Van der Veen stopped short of ruling out criminal liability entirely, but he made clear what prosecutors would need to prove: that election officials knowingly and intentionally assisted unlawful voting, not that they were processing ballots amid unresolved questions about eligibility. “Prison is a possible penalty for a proven federal crime,” he said, “but a presidential statement doesn’t mean someone has committed one.” As of October 19, the Justice Department has publicly announced civil litigation against California to prevent specified mail ballots from being tabulated until citizenship verification occurs. The legal battle is real, the threat is dramatic, but the prospect of election officials actually being locked up for doing their jobs remains, in the view of most experts, far outside the bounds of what the law supports.
