Pam Bondi’s hearings start today.  She’s applying for the job of Attorney General: the lawyer for the United States.  Given the shifting loyalties and vindictive proclivities of the President-elect who has put her forward, every Senator has both an obligation and a very personal stake in ensuring that she understands who her prospective client is.

In that process, one piece of the Project 2025 playbook should be front and center.

There’s no shortage of material in the DOJ section of Project 2025. It calls outright for abolishing the independence of the FBI (and all other independent agencies), prosecuting DAs who use their prosecutorial discretion, enforcing an 1873 law against mailing abortion drugs, and on and on. It implies still more, with goals that would be well within elections-have-consequences bounds in responsible hands (including past Attorneys General of both parties), but deeply concerning in others.

But there’s one bit of Project 2025’s section on DOJ that hasn’t gotten anywhere near the attention it should.  On pp. 562-564, there’s a portion suggesting shifting responsibility for prosecuting election-related offenses from the DOJ’s Civil Rights Division (CRT) to the Criminal Division (CRM).

The problem here isn’t actually the suggestion to shift responsibility. As a factual matter, the authority to prosecute most election-related offenses, including most versions of the particular statute mentioned in the chapter, already lives where Project 2025 wants it to live (with CRM). The Project 2025 chapter seems to have gotten this wrong based on the author’s misunderstanding of a single out-of-context table. 

The problem here also isn’t the fact that when the Project 2025 chapter gives an example of the reason to “shift” to CRM, the example relates to a relitigation of the 2020 election.  I mean, it’s a problem we’re still fighting that fight, yes.  But it’s far from the biggest problem with the example.

The problem is that the particular example that the Project 2025 authors chose to make their point — the example they were aiming for as a paradigm case — is crazypants.  And Bondi should be asked whether she agrees with it.

In 2020, PA’s chief election official, the Secretary of the Commonwealth, sent guidance to counties saying that a voter showing up at the polls but listed on the books as voting absentee should vote a provisional ballot, not a regular ballot.  If the mail ballot counted, the provisional wouldn’t.  If the mail ballot didn’t count for some reason, but the voter was actually eligible, the provisional ballot should count.  One ballot counted and only one ballot counted, for one eligible voter.

Whether the Secretary’s guidance was correct is a matter of state law.  In 2024, in a slightly different context, the Pennsylvania Supreme Court endorsed the guidance’s approach.  But whether you agree or disagree with that interpretation, either way around, this is a fight about the meaning of state law.

And, to be clear, this is a state law fight about whether the ballot of an _eligible_ voter should be counted in the event of a procedural error (which might have been the state’s mistake).  Absolutely no part of this fight, under any reading of the guidance, even remotely suggests that an ineligible voter will be able to vote.

The Project 2025 chapter — in the example they chose to highlight as the paradigm case of DOJ enforcement — says that for issuing this guidance, the PA official “should have been (and still should be) investigated and prosecuted”  (emphasis added).  For conspiring to deprive Pennsylvanians of their civil rights UNDER THE KU KLUX KLAN ACT  (emphasis emphatically added.)

It’s worth saying again. The Project 2025 chapter thinks that a matter of heartland federal prosecution is that the DOJ should send a state official to prison — under the Klan Act — based on a disagreement about whether state law allows an eligible voter to cast a ballot that will be counted. When the state official was trying to ENfranchise the voter.

The reason this case hasn’t been prosecuted isn’t because the authority is with the wrong DOJ division.  The reason this case hasn’t been prosecuted is because that prosecution would be insane. I know plenty of conservative federal prosecutors who take their oaths of office quite seriously. I don’t know one who would think this case is proper.

This is an unrecognizable criminal prosecution.  So much so that it’s hard to describe how out of bounds this suggestion is.  The best I can do is a bad balls-and-strikes metaphor. 

Some legal arguments are strikes.  Some are balls.  (And sometimes the line between depends on the judge.)

Some are wild pitches.

This one is a pitcher completely ignoring the plate and the batter, and trying to fire a fastball as hard as he can directly into the face of a spectator in the stands.

And over the next two days, Pam Bondi should be asked whether she agrees that this is a valid use of DOJ authority.