DOJ invokes Civil War-era law in warning federal agents not to respond to polling places with guns

In recent days, federal law enforcement agents across the government received a jarring communication from the Justice Department: a warning they could be prosecuted under a Civil War-era law if they respond to an election polling place with guns, even for a fake report of a crime.

The memo from Corey R. Amundson, the chief of DOJ’s Public Integrity Section that oversees election crimes, was dated Oct. 15 and states it was prompted by inquiries about how the government might respond to Election Day violence.

It was brought to the attention of Just the News by a senior law enforcement official and confirmed by multiple federal agents, some who said their immediate bosses offered additional guidance.

“In our role overseeing federal prosecutorial efforts against election crime, the Public Integrity Section, through our Election Crimes Branch, has received inquiries about the legality of having armed federal law enforcement agents at polling places,” Amundson wrote. “Given the potential relevance of this issue to federal law enforcement agencies and the Department of Defense. we thought it prudent to bring to your attention Title 18, United States Code, Section 592."

“This statute -- which has been on existence since 1864 -- makes it a felony for a federal official to send armed personnel to an operational polling place for crowd control or other purposes,” the memo added.

DOJ officials and retired agents told Just the News similar communications about the Civil War-era law have been sent out in prior elections, but this year’s memo has gotten more attention internally because of a recent Election Day ISIS terror plot that was thwarted a few weeks ago in Oklahoma and more recent fire bombings of ballot collection boxes in the Northwest.

The current memo cautioned agents that bad actors might try to trick agents into an armed respond to a polling place with a false report of violence.

“Be aware that an individual or group may seek to entice an armed federal response to a polling place in violation of the statute by making a false report of a bomb threat or active shooter,” the memo cautioned. “Coordination with your state and local law enforcement partners is essential.”

The memo stated there are two exceptions to the law:

• “The statute does not prevent federal law enforcement personnel from carrying their service weapon when visiting a polling place to vote in their personal capacity.”
• “The statute does not prevent an armed federal response when a polling place ceases operations since it is no longer covered by the statute under those circumstances. This may occur due to an emergency, such as a bomb threat or active shooter.”

Federal agents said the memo created some confusion and consternation within the agency. “If we get a report of a terror attack and respond like we should quickly and we get there and find it is fake and the polling place is still operating, I guess we go to prison,” one agent said, speaking only on condition of anonymity because they were not authorized to speak to news media.

Jeff Danik, a retired FBI supervisory special agent, told Just the News that this election year memo felt ham-handed and that there was probably a better way to communicate to agents. "It really is a routine notification," Danik said. "DOJ should have just said there’s a prior approval process for a large federal response to a polling location which, absent a public safety emergency, requires specific notifications and approval."

"Instead, being the typical weak leaders at DOJ, they can’t help themselves but to threaten rather than communicate to street agents like children," he added.

The statute at hand dates to the Civil War and the contemporaneous fears that soldiers might have tried to disrupt the election in which Abraham Lincoln won a second term amid intense fighting between Union and Confederate soldiers. 

The U.S. Code was reorganized in 1948 and the text of the law promulgated in 1865 was adopted by Congress to state that: “Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit. or trust under the United States.”

The history lesson aside, the DOJ memo also provided some insights into how the Biden-Harris DOJ is planning to deal with concerns about Election Day strife by creating a special chain of command.

“Each U.S. Attorney's Office has a designated District Election Officer (DEO) and each FBI Field Office has a designated Election Crime Coordinator (ECC),’ the memo explained. “If they have not already, your field offices should reach out to the DEO and ECC in their area to establish points of contact should an incident or emergency arise.

"Law enforcement response across federal, state, and local agencies can and should be reported through the FBI ECC in each jurisdiction. whose role it is to track and verify disruptions to polling places,” it added. “This will help to ensure that any operational activity is properly de-conflicted and lawful.”