On the eve of midterms, White House preps executive-power workaround while court kills DOJ's Alaska ballot play

Two stories broke in close sequence Sunday morning, forty-eight hours before Election Day, and together they sketch the same picture: an administration that has been preparing, methodically and in detail, for the possibility that voters hand at least one chamber of Congress to Democrats on November 3, and has already deployed federal law enforcement in an attempt to shape the outcome of at least one Senate race. Both efforts ran into resistance, the second in the form of a direct court order.

The White House contingency file

Reuters reported Sunday that President Trump's White House has spent months preparing for a possible Democratic takeover of Congress, developing plans to keep advancing major parts of his agenda through executive power while bracing for investigations of his administration, according to a White House official and two people familiar with the plans.

Senior officials, including deputy chief of staff Stephen Miller and budget director Russell Vought, have been working with the White House Counsel's Office since April to identify executive actions on immigration, tariffs, housing costs and federal spending that Trump could pursue without congressional approval, said the three people, who spoke on the condition of anonymity. White House counsel Will Scharf is central to the project. Scharf and his team are looking at "what Trump can legally do on his own, where he could push the limits of his authority and how to defend those decisions in court," the White House official said.

Trump has been briefed on the preparations and has taken part in discussions about them, the White House official said. When a source was asked directly how the president would feel governing that way, the answer was blunt. One of the people said, "very comfortable."

The planning goes beyond executive orders. Trump also wants to change federal grant rules to give political appointees more say in which government programs receive taxpayer money, potentially giving the White House more influence over federal spending without seeking congressional approval. And White House lawyers have sought a Justice Department legal opinion that could allow Trump to invoke executive privilege very broadly to shield communications with private advisers from congressional scrutiny.

Trump himself confirmed the broad outlines Sunday. The president said he could become "Mr. Veto" if Democrats win, and sources previously told Reuters that senior White House officials have been planning ways to continue pursuing Trump's agenda without requiring approval from Congress, including through signing executive orders.

The Reuters investigation framed the structural tension directly. Capturing control of Congress would give Democrats the power to investigate Trump, block legislation and constrain his spending priorities. But Trump would retain broad executive authority over trade, foreign policy and the federal bureaucracy that he has already used aggressively during his second term.

Trump has already tested the reach of presidential power since returning to office in January 2025, using executive authority to impose sweeping tariffs, intensify immigration enforcement, shrink the federal workforce, and pursue foreign-policy goals including the war against Iran without Congress' approval or new laws.

Nathan Gonzales, editor of Inside Elections, a nonpartisan publication, put it plainly. "President Trump in the last two years has basically ignored Congress and tried to do as much as possible through executive orders and executive power," Gonzales said. "I think he will only continue if there are Democratic majorities."

Democrats, though, are not entirely without leverage. Control of the Senate would allow Democrats to block Trump's judicial and executive-branch nominees, including any Supreme Court pick. And one challenge cannot be sidestepped through executive action: congressional investigations. Reuters previously reported that senior House Democrats and committee aides have discussed using hearings, subpoenas and document requests to examine whether Trump has used his presidential power to benefit himself, allies or donors. Trump administration officials could be targeted by congressional subpoenas, though they could defy them because a Justice Department led by Trump appointees would be unlikely to enforce them.

The Alaska ruling

While the Reuters investigation landed in the morning, a federal courthouse in Alaska produced its own answer to the administration's election-eve legal strategy by early afternoon.

A federal judge on Sunday threw out the Justice Department's lawsuit seeking to segregate ballots and delay certification of Alaska's Senate race, the latest legal rebuke to a rash of Trump administration attempts to meddle in the 2026 midterms.

The race involves incumbent Republican Sen. Dan S. Sullivan, who faces Democrat Mary Peltola and, crucially, a second candidate named Daniel J. Sullivan, a retired schoolteacher. President Trump said he ordered the lawsuit to be filed because out of the four Senate candidates on Alaska's ranked-choice ballot, two have similar names: Sen. Dan Sullivan, the Republican incumbent, and Daniel Sullivan Jr., who is not affiliated with a political party.

The Department of Justice wanted "to preserve and segregate all ballots ranking" a candidate named Dan Sullivan for a potential investigation of whether voters in Alaska's U.S. Senate election mistakenly ranked him in the belief he was incumbent Republican Sen. Dan Sullivan. The Justice Department had issued at least three dozen new subpoenas and document preservation requests as of Thursday, including subpoenas sent to the campaign offices of Peltola and of Dan J. Sullivan.

Judge Sharon Gleason, a U.S. District Court judge in Alaska, rejected the entire premise. Gleason said the federal government doesn't have the standing to force Alaska to segregate ballots and that such a move would violate the right of voters to cast a secret ballot. She also found the request unworkable. Gleason said the DOJ offered no workable way to determine whether votes for Daniel J. Sullivan were meant for incumbent Sen. Dan S. Sullivan without compromising ballot secrecy.

District Judge Gleason found the federal government does not have the ability to bring this lawsuit, which cited the preamble of the National Voter Registration Act. Election law scholars had flagged that problem weeks earlier. The DOJ invoked the National Voter Registration Act, which is exclusively a law about voter registration. David Becker, executive director of the Center for Election Innovation and Research, said in a statement, "The Justice Department's lawsuit in Alaska represents an unprecedented intervention by the federal government."

The Alaska Supreme Court had already ruled in June that both Sullivan candidates were eligible for the ballot. Alaska's Republican Sen. Lisa Murkowski, who is not up for reelection in November, sharply criticized the Trump administration's lawsuit, writing, "Alaskans don't need any help voting for their preferred candidates, and the State of Alaska has already handled this by clearly distinguishing the candidates on this year's ballot. The Department of Justice should never have filed this lawsuit."

The administration is not done fighting. The DOJ will appeal the ruling. That appeal faces a tight clock: Alaska election officials expect to start the ranked-choice tabulation process on November 18, more than two weeks after Election Day, following the deadline for overseas ballots to arrive.

The Alaska race is one of the seats that could decide Senate control. Polling indicates Democrats have a chance to win control of both the House and the Senate, with GOP-held seats looking more competitive in recent weeks as Trump faces low approval ratings and poor marks on the economy and the war in Iran.

What to Watch

• DOJ appeal clock: The Justice Department says it will appeal Judge Gleason's ruling. Any circuit court action before Tuesday's polls close would be extraordinary and legally fraught, given that ballots are already cast under Alaska's early-voting rules.
• Senate math: All 435 House seats and 35 of the 100 Senate seats will be contested to determine the 120th United States Congress. Alaska is among the seats that polling analysts have rated competitive in the final days.
• Executive privilege memo: Watch for whether the Justice Department issues the legal opinion that White House lawyers have requested to broadly shield presidential communications from congressional subpoenas. If it lands before the new Congress is seated in January, it could set the terms of any Democratic investigation from the start.
• Vought and grant rules: OMB Director Russell Vought's reported plan to give political appointees more control over which federal programs receive already-appropriated money will face immediate legal challenge under the Impoundment Control Act if he moves forward after the election.
• Sen. Chris Murphy: Murphy was hospitalized after experiencing numbness in his arm, an unrelated development that nonetheless adds a variable to Senate dynamics if Democrats do win the chamber and need every vote from day one.

Sources: Reuters / U.S. News | Axios | CNN | NPR | The Hill | CNBC | FactCheck.org | Forbes | Harvard Gazette