When Todd Blanche, President Donald Trump’s nominee for attorney general, appears before the Senate Judiciary Committee this week, senators will undoubtedly ask how he plans to continue righting the wrongs of a Justice Department that former President Joe Biden weaponized against the American people.
They should add another issue to that list: dismantling the Biden DOJ’s election “guidance” playbook and preventing a future Justice Department from using it again.
Guidance is not law. It is not enacted by Congress or adopted through the regulatory process. It is an agency’s interpretation of existing law. But state and local election officials understand the practical consequences: Today’s guidance can become tomorrow’s investigation, lawsuit, or enforcement action.
The Biden DOJ put that threat to work.
In the aftermath of the 2020 election, former Attorney General Merrick Garland developed a playbook to control state election administration. Between 2021 and 2024, his DOJ issued guidance addressing post-election audits, pandemic-era voting procedures, and voter-roll maintenance. Each purported to be merely informational. Together, however, they advanced aggressive policies favorable to Democrats and threatened states seeking to adopt strong election-integrity protections.
In May 2021, a senior DOJ official warned the Arizona Senate that its audit of the election in Maricopa County raised concerns. Two months later, the DOJ issued guidance stating that certain post-election audit activities could violate federal record-preservation requirements or even constitute voter intimidation.
The Public Interest Legal Foundation called the guidance legally tenuous and noted that DOJ had never previously attempted to interfere with state election audits, recounts, or canvases.
That same day, DOJ issued a separate publication addressing states that had temporarily relaxed voting safeguards in response to COVID-19. It warned that returning to pre-pandemic procedures could trigger federal review. PILF described the policy as a “one-way ratchet.” States could loosen voting procedures during an emergency, but efforts to restore longstanding safeguards would be treated as suspect.
Then, in September 2024, the DOJ issued sweeping guidance on voter-roll maintenance. After Alabama moved to identify and remove suspected noncitizens from its voter rolls, DOJ sued the state based on the same legal theory laid out in the document.
Election officials deciding whether to conduct an audit, maintain voter rolls, or modify voting procedures may have only weeks to act. Faced with the prospect of battling an army of federal government lawyers, many will abandon the effort rather than risk becoming the DOJ’s next target.
The Biden administration understood that leverage and deliberately removed guardrails designed to prevent abuse. In his first term, Trump issued executive orders restricting the weaponization of guidance. Biden revoked them on his first day in office, clearing the way for DOJ to wield those powers more freely.
Now, Congress has an unexpected opportunity to end this playbook for good.
In the final days of the Biden administration, the DOJ finalized a rule eliminating the Trump-era safeguards and allowing guidance to serve as the basis for enforcement actions. The Congressional Review Act allows Congress to overturn agency rules by a simple majority and bars agencies from reissuing substantially similar ones. The period for congressional review begins only when a rule is formally submitted to Congress. Because DOJ never submitted the Biden rule, the clock never started, so lawmakers can still pass a CRA resolution to overturn the rule and prevent future Justice Departments from weaponizing guidance in the same way.
The stakes extend far beyond elections. The Biden DOJ relied on the same tactics in matters involving environmental justice, gender ideology, civil rights, and other policies affecting everyday Americans.
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The issue is especially timely as election integrity returns to the forefront on Capitol Hill with renewed efforts to advance the SAVE America Act. New election laws matter, but Congress should also eliminate the backdoor mechanisms a future Justice Department could use to pressure states without passing a single law.
The Biden administration left behind a playbook for chilling election-integrity measures and laying the groundwork for federal enforcement. Blanche’s confirmation process gives senators a chance to ask whether he will help Congress ensure that the same tactics cannot be used again.
Jennifer Butler is a Senior Policy Advisor at State Policy Network’s Center for Practical Federalism.