Criminal Law Library Blog
On August 12, 2026, Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College, published a commentary in Verdict, Justia’s legal analysis and commentary publication. Sarat’s commentary is titled “Trump’s Arresting State,” where he examines what he regards as an increasingly consequential feature of the Trump administration: the use or threatened use of arrest, prosecution, fines, and other criminal penalties not simply against political opponents, but as a means of pressuring state and local officials to cooperate with federal policy objectives.
Sarat’s article is strongly critical of the administration. His central concern is that the threat of criminal enforcement may be moving beyond conventional law-enforcement situations and into disputes involving government authority and public policy, particularly immigration enforcement and the administration of elections. Because Sarat’s article is commentary rather than a neutral news report, it is useful to examine his arguments alongside the administration’s own statements, relevant government documents, and other primary sources. Doing so provides a fuller context within which readers can evaluate both Sarat’s concerns and the federal government’s stated legal and policy justifications.
From Political Rhetoric to Governmental Power
Sarat begins by recalling Donald Trump’s “Lock her up” refrain during the 2016 presidential campaign against Hillary Clinton and Trump’s January 2021 telephone call with Georgia Secretary of State Brad Raffensperger. For Sarat, those incidents provide historical context for the President’s willingness to invoke possible criminal consequences in political disputes. But he sees an important difference between those earlier episodes and the present situation: the institutional power now available to the administration. Sarat argues that since Trump’s return to the presidency, threats of arrest and prosecution have increasingly become part of the administration’s efforts to obtain cooperation with its policies. His concern therefore extends beyond political rhetoric to the government’s actual ability to investigate, arrest, and prosecute.
Immigration Enforcement as an Earlier Example
To illustrate his argument, Sarat discusses several confrontations arising from the administration’s immigration policies. Among them is the April 2025 arrest of then-Milwaukee County Circuit Court Judge Hannah Dugan, who was charged with interfering with federal immigration enforcement. Dugan was subsequently convicted by a federal jury of endeavoring to obstruct a pending Department of Homeland Security proceeding. She resigned from the bench and, in July 2026, was sentenced to pay a $5,000 fine. Sarat also discusses the arrests of Newark Mayor Ras Baraka and Representative LaMonica McIver during a May 2025 confrontation at the Delaney Hall immigration facility in Newark, New Jersey, as well as the arrest of New York City Comptroller Brad Lander outside federal immigration court.
The Justice Department later charged McIver with forcibly impeding and interfering with federal officers. Its announcement stressed that an indictment is only an allegation and that a defendant is presumed innocent unless proven guilty beyond a reasonable doubt. Sarat acknowledges that these incidents can be distinguished from situations in which public officials are threatened with prosecution specifically because of how they perform their governmental responsibilities. Nevertheless, he views them as part of a broader pattern in which criminal enforcement can exert substantial pressure on officials who challenge federal policies.
The Focus Shifts to Election Administration
The central concern of Sarat’s commentary is the extension of this approach into election administration, an area in which state governments have substantial constitutional responsibilities while Congress also possesses authority to regulate aspects of federal elections. Sarat highlights statements by Secretary of Homeland Security Markwayne Mullin, who warned that election officials who fail to cooperate with federal election-security initiatives could potentially face fines, penalties, or imprisonment. For Sarat, this represents an important escalation. The issue is no longer simply whether an official protesting or interfering with a federal operation may have violated federal law. Instead, the possibility of criminal liability may be invoked against state or local officials in connection with the performance of their official election responsibilities.
Federal Warnings to State Election Officials
Sarat next discusses letters sent on July 7 to election officials in all fifty states by Harmeet K. Dhillon, Assistant Attorney General for the Civil Rights Division of the Department of Justice.
According to Sarat, the letters warned that election officials who knowingly retain noncitizens on statewide voter-registration lists, or facilitate their receiving and casting ballots, could face criminal liability. Sarat emphasizes that the letters identified federal criminal statutes under which election officials potentially could be prosecuted. He interprets the combination of requests for cooperation and warnings about possible criminal liability as part of a broader effort to increase federal influence over state election administration.
The administration presents its efforts differently. The Justice Department maintains that accurate voter rolls are essential to election integrity and that federal law gives the Attorney General authority to obtain election records and enforce federal voter-registration requirements.That position received additional legal support within the executive branch in a May 12, 2026 opinion from the Justice Department’s Office of Legal Counsel. The OLC concluded that the Civil Rights Division has authority to seek statewide voter lists and to share them with the Department of Homeland Security as part of an effort to identify individuals who may be ineligible to vote.
The Justice Department has also pursued extensive litigation against states that declined to provide requested voter-registration data. By February 2026, DOJ reported litigation involving 29 states and the District of Columbia; an April 2026 lawsuit against Idaho increased the number to 30 states and the District of Columbia. These actions demonstrate that the dispute extends beyond political rhetoric. It involves competing interpretations of federal statutory authority, state responsibilities for administering elections, election integrity, privacy, and the proper boundaries of federal oversight.
Federalism and the Administration of Elections
Underlying Sarat’s analysis is a broader constitutional concern about the allocation of governmental power:
The Constitution assigns significant responsibility for conducting elections to the states while also granting Congress authority to regulate aspects of federal elections. Disputes between federal and state authorities over voter eligibility, voter rolls, election security, and access to election information therefore raise questions of federalism as well as election law. Sarat argues that the threatened use of criminal prosecution changes the character of such disagreements. Instead of disputes being resolved primarily through legislation, administrative processes, negotiation, or litigation, individual government officials may also have to consider whether resisting a federal directive could expose them personally to investigation or prosecution.
Sarat’s Broader Warning
Sarat ultimately places these developments within a larger concern about democratic institutions and what he regards as authoritarian methods of governance:
His argument is that threats of arrest can themselves exert coercive power even when prosecution does not ultimately occur. Investigation and criminal proceedings can impose financial costs, consume time, disrupt careers and families, and damage reputations. Consequently, Sarat believes the possibility of prosecution may influence the behavior of government officials even before a court determines whether any law has been violated. His central thesis is therefore broader than the legality of any particular arrest or prosecution. Sarat asks readers to consider what happens when the threat of criminal law becomes a recurring instrument for obtaining governmental compliance. He concludes that recent warnings directed toward election officials represent another stage in that development, one in which federal criminal enforcement may become intertwined with disputes over how state and local officials carry out their governmental responsibilities.
Point of Perspective
It is important to emphasize that Sarat’s essay is commentary and legal analysis, not a neutral news report. His description of the administration’s actions as characteristic of an “arresting state,” and his references to authoritarian or autocratic governance, reflect his interpretation of the events. The administration and its supporters often describe the same actions differently: as lawful efforts to enforce federal immigration and election laws, protect federal officers, ensure compliance with federal statutes, remove ineligible people from voter-registration rolls, and safeguard election integrity
There also are important factual and legal distinctions among the examples Sarat discusses. The conviction of Hannah Dugan, for example, followed a federal jury trial and resulted in a criminal judgment, whereas allegations contained in an indictment, such as those initially brought against Representative McIver, do not establish guilt. Similarly, a warning that particular conduct could violate federal law is not itself a prosecution.
At the same time, Sarat raises a question that does not necessarily depend on accepting all of his characterizations: Where should the line be drawn between legitimate federal law enforcement and the use, or threatened use, of criminal prosecution as a means of compelling state and local officials to conform to federal policy? That question implicates federalism, prosecutorial discretion, election administration, the independence of state and local officials, and ultimately the relationship between criminal law and political power. Maintaining this distinction is essential to a balanced examination of the subject. A reader need not accept Sarat’s characterization of the administration as autocratic to consider the institutional questions he raises; nor should concerns about potential governmental coercion obscure the federal government’s legitimate authority and responsibility to enforce laws enacted by Congress.
Why Librarians and Researchers Should Care
Sarat’s commentary raises issues extending beyond the immediate political controversies surrounding the Trump administration. For librarians and researchers, it illustrates the importance of distinguishing among reported facts, government allegations, official policy statements, legal authority, judicial determinations, and commentary interpreting those developments. That distinction becomes especially important when criminal enforcement intersects with politically sensitive questions involving immigration, elections, federalism, and the responsibilities of state and local officials.
The controversy also demonstrates why researchers should consult primary sources whenever possible. Government press releases, court filings, statutes, executive actions, judicial decisions, and official statements may present events quite differently from journalistic, academic, or opinion commentary.
Comparing those materials allows researchers to evaluate not only what happened, but also how competing participants characterize the legal authority and constitutional principles involved. In that sense, Sarat’s article provides a useful case study in the continuing importance of source evaluation, context, attribution, and preservation of competing perspectives in legal and public-policy research.
Concluding Research Perspective
Sarat interprets the administration’s actions as evidence of an expanding use of criminal enforcement and threats of prosecution to influence the conduct of public officials. The administration, through the Justice Department and other federal agencies, presents many of the same actions as lawful exercises of federal authority intended to enforce immigration laws, protect federal officers, maintain accurate voter rolls, and safeguard election integrity. Neither perspective should substitute for examination of the underlying evidence.
For librarians, researchers, and other readers seeking to understand these controversies, the most useful approach is therefore to read Sarat’s commentary alongside the relevant statutes, government documents, judicial decisions, court records, and other primary sources, and to distinguish carefully among allegations, established facts, legal arguments, judicial determinations, and opinions about their broader constitutional significance.
Viewed in that manner, Trump’s Arresting State can serve not only as a commentary on the current administration but also as a starting point for a broader inquiry into an enduring constitutional question: how a democratic society should maintain the legitimate enforcement of law while safeguarding against the possibility that criminal enforcement itself may become an instrument for resolving political or intergovernmental disputes
In conclusion, the discussion above summarizes and places Sarat’s arguments in a broader research context. Characterizations attributed to Sarat should be understood as his analysis and opinions, not as independent factual conclusions of this overview
Selected References, Primary Sources, and Additional Resources
PRIMARY COMMENTARY:
Austin Sarat, “Trump’s Arresting State,” Justia Verdict (August 12, 2026).
This is the principal source discussed in this overview. Sarat argues that threats of arrest and criminal prosecution are increasingly being used as instruments for obtaining compliance with administration policies. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Verdict notes that the views he expresses do not represent Amherst College and states separately that the opinions expressed by its columnists do not represent the opinions of Justia.
Live Link:
Austin Sarat, Trump’s Arresting State, Justia Verdict:
https://verdict.justia.com/2026/08/12/trumps-arresting-state
OFFICIAL GOVERNMENT SOURCES: ELECTIONS AND VOTING:
U.S. Department of Justice, Office of Legal Counsel, “Authority to Obtain and Share Statewide Voter Roll Data” (May 12, 2026).
The Office of Legal Counsel concluded that the Justice Department’s Civil Rights Division has authority to seek statewide voter lists and share them with the Department of Homeland Security as part of efforts to identify persons who are ineligible to vote. This provides an important primary source for understanding the executive branch’s legal justification for the voter-data initiative.
Live Link:
https://www.justice.gov/olc/media/1440346/dl
U.S. Department of Justice, “Justice Department Sues Five Additional States for Failure to Produce Voter Rolls” (February 26, 2026).
This release explains the Justice Department’s rationale for its voter-roll litigation. DOJ stated that its actions were intended to promote accurate voter rolls, transparency, and election integrity. At that point, the Department reported litigation involving 29 states and the District of Columbia.
U.S. Department of Justice, “Justice Department Sues Idaho for Failure to Produce Voter Rolls” (April 1, 2026).
This subsequent action brought the Justice Department’s reported total to 30 states and the District of Columbia. DOJ again cited its authority under federal election laws and the Civil Rights Act of 1960.
Live Link:
https://www.justice.gov/opa/pr/justice-department-sues-idaho-failure-produce-voter-rolls
U.S. Department of Justice, Civil Rights Division — Voting Section.
The Voting Section administers and enforces federal voting statutes, providing useful background for evaluating the Department’s asserted authority and responsibilities in election matters.
Live Link:
https://www.justice.gov/crt/voting-section
OFFICIAL GOVERNMENT SOURCES: ARRESTS AND FEDERAL ENFORCEMENT:
U.S. Attorney’s Office for the Eastern District of Wisconsin, “Former Milwaukee County Judge Sentenced for Obstruction” (July 8, 2026).
This official source provides subsequent history concerning Hannah Dugan. A federal jury found Dugan guilty of endeavoring to obstruct a pending DHS proceeding, and in July 2026 she was sentenced to pay a $5,000 fine.
Live Link:
https://www.justice.gov/usao-edwi/pr/former-milwaukee-county-judge-sentenced-obstruction
U.S. Attorney’s Office for the District of New Jersey, “Congresswoman Charged for Forcibly Impeding and Interfering With Federal Officers” (June 10, 2025).
This Justice Department release presents the government’s allegations against Representative LaMonica McIver arising from the May 9, 2025 events at the Delaney Hall immigration facility in Newark. The release expressly notes that an indictment is an allegation and that a defendant is presumed innocent unless proven guilty beyond a reasonable doubt.
Together, these materials give readers more than supporting citations; they enable a comparison of competing narratives and legal interpretations.
Attribution Note
This overview is based principally on Austin Sarat’s August 12, 2026 Justia Verdict commentary, “Trump’s Arresting State.” Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Verdict states that Sarat’s views do not represent Amherst College and that the opinions of individual Verdict columnists do not represent the opinions of Justia.