The shabby practice of recruiting decoy candidates is old hat in American politics, although it is unusual for it to surface in a race for an office as high-profile as that of a US senator. New York Times reporting has now confirmed what I agree with National Review’s Dan McLaughlin is the year’s least surprising scoop: Democratic operatives recruited an obscure schoolteacher named Daniel J. Sullivan to appear on the ballot alongside incumbent Republican Sen. Daniel S. Sullivan. Narrowing the risk of voter confusion, the ballot added “Incumbent” and “registered Republican” alongside the name of the “real” Dan. 

What legal issues are in play here? 

To begin with, nothing about this changes the meritless nature of the Trump DOJ’s federal lawsuit, discussed in this space last week. 

Some have demanded criminal prosecution, although at this point I have not seen anyone point to any criminal law, Alaska or federal, that prohibits the central act involved here, recruiting a same-name candidate. Focus would then naturally shift to the question of whether criminal laws were broken in the course of ancillary acts, such as making false sworn representations or paying campaign actors who cannot lawfully be paid.

Read the rest of this post →

A few months ago, Reddit received an administrative subpoena requesting identifying information for an account that had criticized Immigration and Customs Enforcement (ICE) and the Transportation Security Administration (TSA) as well as posted biographical details about Jonathan Ross, the ICE officer who fatally shot protester Renée Good. After the user moved to quash, the administrative subpoena was withdrawn. But days after, Reddit received a grand jury subpoena for similar information. The user’s motion to quash the grand jury subpoena was denied, and the user is appealing the denial to the DC Circuit.

Cato joined an amicus brief filed by the American Civil Liberties Union (ACLU), ACLU of DC, Electronic Frontier Foundation, and Center for Individual Rights urging the court to rigorously review the basis for the grand jury subpoena. The right to anonymity is deeply rooted in American history and serves critical functions online and off. While the grand jury traditionally has broad investigative authority, judicial scrutiny is warranted where a grand jury seeks to unmask an anonymous speaker. The government’s interest in unmasking will not be sufficiently compelling to justify piercing a speaker’s anonymity unless the government has made a prima facie showing that the speaker committed a crime. Nor is unmasking an anonymous speaker to chill protected speech a proper purpose for a grand jury subpoena.

The Trump administration has fared poorly in court in its attempts to shape the midterms to its political advantage, and its latest lawsuits against California and Alaska seem likely to fail as well. But would it have better luck if it dressed up a bid to intervene as a matter of national security? Courts are markedly more deferential to claims of presidential power when that is a factor, although their deference is still by no means absolute. 

Last week, NPR reported that the top Democrats on the House and Senate intelligence committees, Rep. Jim Himes (D‑CT) and Sen. Mark Warner (D‑VA), are predicting that a president unwilling to accept adverse election results will claim foreign interference. (Himes also noted that despite the administration’s rumblings on the issue, it has failed to come up with what NPR calls “legally mandated pre-election reports to Congress assessing the state of play regarding foreign election meddling efforts.”) 

Read the rest of this post →

Voters will go to the polls soon in states and municipalities to decide ballot issues of significance for individual liberty, limited government, and sound public administration. Some highlights (via Ballotpedia and Bolts): 

Front and center for tax-watchers is the proposed California Proposition 40 wealth tax, criticized here in numerous pieces, including this policy analysis. Unusually steep by international standards at 5 percent, the measure would also defy widespread notions of legal regularity by reaching back retroactively to tax assets as of January 1, 2026, of persons who’d already moved out of state before the law’s enactment. Bad stuff.

Colorado’s Amendment 87 would replace the state’s flat 4.4 percent income tax with a graduated tax; it faces a counter-proposition that would freeze the existing flat rate. Iowa, Missouri, North Carolina, and Washington will all consider measures to freeze, roll back, or discourage increases in income tax rates. Adam Michel lately discussed the success of state flat taxes. 

Read the rest of this post →

Documents obtained by Cato via the Freedom of Information Act (FOIA) reveal that more than a year before the 2026 midterms, the FBI was quietly building two election-related capabilities at once. The first was a set of internal “triggers” that told field agents when they could investigate AI-generated or “synthetic” political content — rules the Bureau is still keeping secret. The second was an apparently new headquarters post called the “FBI Election Executive,” who stood up in mid-2025 to “handle preparations for the 2026 midterm cycle.” In the months since that “Election Executive” position became public, nearly every public trace of the official who holds it has disappeared — her LinkedIn profile has been taken down, and there is no findable record of her on the FBI’s own website.

The FOIA Request and the Revealing Non-Answer

On February 27, 2026, I filed a FOIA request seeking six specific categories of records about FBI election-security activity conducted under the direction of the Office of the Director of National Intelligence (ODNI) — including the January 28, 2026, FBI raid on the Fulton County, Georgia, election office, at which Director of National Intelligence Tulsi Gabbard was personally present and reportedly put President Trump on the phone with the agents executing the search.

On October 13, 2026, the FBI finally responded to my FOIA request. It reviewed 41 pages, released 34, and withheld 7 in full. Not one of the 34 released pages answers any of my six questions. There is no ODNI tasking record, no 2011 ODNI-FBI memorandum of understanding, no legal analysis of ODNI’s authority to direct FBI field operations, no Fulton County coordination record, and no congressional-notification record. Nor did the FBI issue a “Glomar” response formally refusing to confirm or deny that such records exist. 

The categories I asked about are simply not addressed, which strongly suggests they were never searched. That failure is the subject of an administrative appeal I am filing this week.

Instead, the FBI released an internal Office of General Counsel (OGC) email chain on a different subject altogether — and that disclosure has implications for the 2026 midterms and the 2028 presidential contest.

Secret “Triggers” for Investigating Political Speech

The released emails document an FBI effort, launched in the fall of 2025, to write formal legal guidance for Special Agents in Charge (SACs) on when the Bureau may investigate AI-generated or “synthetic” media during the election cycle. The anchor document, dated September 30, 2025 — more than thirteen months before Election Day — is a background paper titled “AI in the 2026 Election Space.”

Interestingly, the unredacted portions are notably protective of the First Amendment, at least rhetorically. 

The paper states that synthetic media is “generally considered protected free speech,” that “the FBI may not take investigative action based solely on the exercise of First Amendment rights or on the race, ethnicity, gender, national origin, religion, disability, sexual orientation, or gender identity of the subject,” and that every investigation must rest on an “authorized purpose” under the Attorney General’s Guidelines and the Domestic Investigations and Operations Guide (DIOG). 

However, that “authorized purpose” is something Bureau and Justice Department officials essentially get to define themselves, a practice that has led to improper First Amendment-related investigations at scale, as documented by the Government Accountability Office (GAO) earlier this year.

But the sentence that matters most — the one listing the “general triggers” for when agents may review synthetic political content — is blacked out under FOIA Exemption 7(E), which shields law-enforcement techniques.

So, the public is told the FBI will respect the First Amendment but is not told the precise circumstances under which it has decided it need not do so. 

A promise with the operative terms redacted is not transparency; it is an assurance the public cannot verify, much less count on, as the GAO investigation I noted above revealed. Those triggers and the final SAC guidance built around them are the subject of a separate FOIA request that I will also file this week.

A New “Election Executive” — Ordered from the Top

The same email chain reveals that the guidance was commissioned at the very top of the Bureau. Then-Deputy Director Dan Bongino “requested an overview on AI in the election space,” the records show, and directed that OGC draft companion legal guidance “for all ADICs and SACs,” on a compressed timeline, “ideally out within mid-November.” 

Coordinating the work was a figure identified in the records as the “FBI Election Executive” — Kellie M. Hardiman, working out of the Office of the Deputy Director and, in her own words, “assigned to the DD’s office to handle preparations for the 2026 midterm cycle.”

Two features of that position deserve scrutiny. First, its novelty. The title “FBI Election Executive” appears nowhere in the public record before 2025. Hardiman’s own background is in intelligence, not elections: an independent, dated source — her speaker biography for the 2025 Law Enforcement Innovation Summit — identifies her as Deputy Assistant Director of the Intelligence Branch of the FBI’s Criminal Investigative Division, with a career spanning counterterrorism, counterintelligence, and a detail to the CIA. That 2025 bio makes no mention of elections. She appears to have taken the election role only in mid-2025 — contemporaneous with the secret AI-triggers workstream.

Asked by reporters in February 2026 when the position was created, the FBI would not say, asserting only that the role “is not a new role” — while naming no predecessor and providing no date. Pressed again by Politico, the government again declined to give a date, with the White House offering: “We don’t have anything additional to provide at this time.” A genuinely pre-existing position would have a creation date readily at hand.

The Vanishing Paper Trail

Here is where the story takes a very interesting turn. 

In February 2026, Hardiman signed correspondence as “FBI Election Executive,” inviting chief state election officials across the country to a briefing on the midterms. The outreach drew bipartisan unease; one invited official told NBC News the invitation was “unusual and unexpected” and that, of Hardiman, “no one has heard of this person.” At the time, reporters could at least find her: NBC cited a LinkedIn profile reflecting her appointment.

No longer. Between the February 6, 2026, NBC News story and October 19, 2026, that LinkedIn profile was removed from public view: the URL NBC cited now redirects to a dead end, and a related URL for the same account returns a “404” not-found page. The Internet Archive holds no capture of either, so there is no preserved public record of what it said. And a search of the FBI’s own website for “Kellie Hardiman” returns no result identifying her, even though the Bureau routinely publishes announcements of comparable senior appointments. The only public biography that survives is the one on a private conference vendor’s site — and it predates her election role and never mentions it.

The LinkedIn takedown is confirmed. The FBI website’s absence cannot, by itself, distinguish between a page that was removed and one that never existed. What is not in dispute is the net effect: the official the FBI publicly deployed to coordinate its election-year engagement with all fifty states has, within months, become nearly impossible to find in any government-controlled or self-published source. Whether by design or by neglect, that is the opposite of accountability.

The Statute in the File

One other document rounded out the release: a copy of the TAKE IT DOWN Act (Pub. L. 119–12), the nonconsensual-intimate-imagery and “digital forgery” law that Sen. Ted Cruz (R‑TX) and Sen. Amy Klobuchar (D‑MN) shepherded to enactment on May 19, 2025, and that the FTC began enforcing in May 2026. An OGC lawyer flagged it as “the one new legal development” worth noting to SACs — the reasons, naturally, redacted. It is a reminder that the Bureau’s interest in synthetic media is real and has a legitimate statutory basis. The problem is not that the FBI is thinking about deepfakes; it is that it is building secret rules about political speech and staffing a secret-ish office to run them.

Why It Matters

Strip away the FOIA mechanics and the sequence is this: in the year before a midterm election, the FBI’s political leadership ordered up secret rules governing when agents may investigate political speech, created an apparently new headquarters position to manage the Bureau’s election-year footprint, pointed that position at all fifty states’ election officials — and then the public record of the person running it thinned to almost nothing. Each piece might be explained away. Together, they describe an election-year expansion of federal investigative attention to political content, conducted with the operative details withheld and the responsible official rendered close to invisible.

The FBI may well have good answers. Congress should compel the Bureau to give them, on the record, with dates and with the “triggers” unredacted, so we can all judge whether the Bureau’s conduct in this area passes constitutional muster.

Decades ago, the Supreme Court held in a case called Monell v. Department of Social Services that you can sue a local government for violating your constitutional rights only if the violation resulted from the locale’s “official policy.” In other words, if a county employee goes rogue, you can’t hold the county itself responsible.

A new court decision stretches Monell to the point of absurdity, holding that the county’s top official does not set official county policy. Boone County, Illinois’s coroner, Wesley Hyland, committed a constitutional violation of an uncommonly disturbing sort. He “kept several skulls as trophies from the deceased he examined,” according to the Seventh Circuit. One of them belonged to a high school student who was kidnapped, raped, and murdered. Forty-five years later, her brothers learned that Hyland had held onto her skull. They recovered it, exhumed her other remains, and reburied them together. Then, they sued Boone County.

Read the rest of this post →