Editor's Note: This article originally appeared in Executive Functions.

On Wednesday, the New York Times published an extensive account detailing reasons to suspect the Trump administration might be preparing to interfere in the midterm elections to prevent a change in party control.

The story rests on abundant evidence of public threats and actions by the president and his advisers. Most recently, on the occasion of the State of the Union address, Trump repeated what he has said on numerous less formal occasions, from posts on Truth Social to podcast appearances: election fraud in the U.S. is “rampant,” and Democrats, who cannot win any other way, cheat.

The Times story omits one critical element in the election interference plan: the serious possibility that, when the courts are called on—and they will be—to remedy administration actions to interfere with the election, the Trump administration may respond with defiance.

Much has been written about the potential in other contexts that the Trump administration, unhappy with the courts, might proceed in some circumstances to defy them. Proponents of this point might cite the extraordinary complaints among the lower courts that the administration has failed to comply with orders and has litigated its position in dodgy ways that should cost it the “presumption of regularity” normally afforded the executive branch. They could also note the harsh rhetoric employed by the president and administration officials who charge the courts with going “rogue” in “radical left” and “lunatic” opposition to the president’s programs and authority.

Those who doubt that Trump will eventually resort to outright defiance acknowledge the attacks on the courts and the conduct testing judicial patience, but they put stock in the fact that, so far, he has not been fully and openly defiant—even as he has suffered scores of losses throughout the federal court system. Still more significantly, the administration has not moved toward defiance of the Supreme Court. To the contrary, as Jack has pointed out, the solicitor general has made the extraordinary commitment to the Court that the administration will respect not only specific judgments binding on the United States as a party but will also follow its opinions on the law. When, in a major defeat for the president, the Court struck down tariffs issued under the International Emergency Economic Powers Act, Trump expressed his displeasure in extreme terms, but he did not threaten to disregard the ruling.

It cannot and should not be assumed that this relatively restrained administration posture, stopping short of defiance, will hold for the elections. For this president, the question of congressional control is one of existential significance. He sees it as a direct threat to him, bringing with it the danger of investigations and potential impeachment. It is hard to imagine that he is planning to extend an olive branch to the Democrats in the event they win the House (and even the Senate) or is devising strategies to work with the opposition party that he has characterized—again, as recently as the State of the Union address—as “sick” and “crazy.”

Consider, as Trump might, the significant difference between the defeat in the tariff case and the potential loss of the midterm elections—and how that difference bears on his potential response to adverse court rulings.

In the tariff case, Trump could denounce the Court but declare that he had, in fact, won, even more power than before to use tariffs as he sees fit. He declared in the aftermath of that ruling that “now I’ll go the way I could have gone originally, which is even stronger than our original choice.” And: “while I am sure that they did not mean to do so, the Supreme Court’s decision today made a president’s ability to both regulate trade and impose tariffs more powerful and more crystal clear.” Trump promptly imposed tariffs on all countries under Section 122 of the Trade Act of 1974, first at 10 percent and then announcing his intention to raise the rate to 15 percent.

In the context of the midterm elections, Trump either maintains his unified congressional majority or he does not. Should the vote count go against him, the only road back for him is to attempt to reverse it. It does not help Trump to eventually accept the loss and then rail that the new Democratic majority came by their victory dishonestly. That claim does not protect him against the dangers he perceives if Democrats, in the House and perhaps also in the Senate, win those elections.

It is more conceivable that in these circumstances Trump would adopt the position that, as president, he must take steps that the courts are powerless to block. Already, in an executive order issued last March, the administration has claimed a presidential authority found nowhere in the Constitution to establish voting rules and supervise their implementation to “prevent fraud.” In a Truth Social message in August, Trump falsely characterized the states as acting as “agents” of the federal government in counting the votes, and positioned the president as the ultimate authority:

Remember, the States are merely an “agent” for the Federal Government in counting and tabulating the votes. They must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do.

And the executive order itself gestures at a claim of authority that transcends enforcement of laws already on the books to protect election integrity. It states that “It is the policy of my Administration to enforce Federal law and to protect the integrity of our election process.” (Emphasis added.) The order illustrates one way that he has acted beyond federal law to effectuate that policy. By this order, he sought to assert control of the Election Assistance Commission, which Congress established by law to be bipartisan, and to direct the Commission to write rules governing the use of voting machines. Less publicly, the Department of Justice has pulled down the manual detailing longstanding policies in the executive branch that limit election-year criminal law enforcement activities that could disrupt or influence voting.

It seems implausible to imagine that Trump, who remains fixated on his 2020 defeat and his failure to enlist judicial support for his case, will simply allow a losing hand to play out the same way. It was revealing that in denouncing the Supreme Court’s tariff decision, he suddenly invoked its failure to come to his aid in 2020:

They also are, frankly, a disgrace to our nation, those justices . . . Others think they’re being politically correct, which has happened before far too often with certain members of this Court, and it has happened so often with this Court—what a shame—having to do with voting in particular, when in fact, they’re just being fools and lapdogs for the RINOs and the radical left Democrats and, not that this should have anything at all to do with it, they’re very unpatriotic and disloyal to our Constitution. (Emphasis added).

It is impossible to say now in what ways the defiance of the courts, including the Supreme Court, could come about in a clash over the midterms. It could arise in a challenge to the government’s deployment of force in and around polling places, or an attempt to seize machines either before or after the Election Day, or various steps taken to obstruct the use or counting of mail-in ballots. In future posts, I will discuss potential scenarios of this kind in more detail.

But it is important to keep in mind that, in broadest terms, a strategy of election interference can be focused on two objectives: 1) to prevent the certification of Democratic victories, which takes place in the states; and 2) to set up as necessary a fight in the House or the Senate under a constitutional system that leaves the final decision on seating to the congressional bodies. In either case, Trump’s refusal to accept a loss logically leads to potential confrontation with the courts at whatever point they intervene. He would then declare that “for the good of the country,” he must act to protect the integrity of the elections without regard to judges who he deems “fools and lapdogs for the RINOs” and “disloyal to our Constitution.”

Even if Trump’s actions on Jan. 6, 2021 are not sufficient to convince a skeptic that Trump would take this course to avert a midterm defeat, there is simply too much evidence in the last year alone to discount it. Why would one not take seriously a president with this history, who advises the Congress in his official annual address that Democrats “want to cheat, they have cheated, and their policy is so bad that the only way they can get elected is to cheat.”

And then concludes: “we’re going to stop it.” If he is determined to “stop it,” it cannot be reasonably expected that he will agree that the courts—including the same Supreme Court that he denounced after the tariff ruling as disloyal to the Constitution—has the power to stop him.

In future posts, I will write about measures that might be taken to prepare now for the brewing conflict over the elections between Trump and the courts.

NOTE: As this posting was being readied for publication, The Washington Post reported that Trump allies are urging him to issue a 17-page executive order claiming emergency power to counter foreign government interference in the elections. Nothing would suggest that they are addressing this proposal to an unreceptive audience in the Oval Office.