What can the FBI do in Texas redistricting fight? Not much, experts say.

Texas GOP leaders hailed the FBI’s apparent willingness to help them track down the more than 50 Democratic lawmakers who have left the state amid a messy redistricting fight, calling it a necessary step to end a standoff that has ground state politics to a halt.

But a day after Sen. John Cornyn, R-Texas, said that FBI Director Kash Patel had assigned agents in San Antonio and Austin to assist Texas law enforcement in the effort, it was unclear what steps they were taking, if any.

The FBI has not confirmed Cornyn’s statement. And a person familiar with the situation said the bureau had not deployed any significant resources. As of Friday morning, state and local law enforcement had made no official requests for assistance, the person said, speaking on the condition of anonymity to discuss operational details.

Legal experts said even a mere pledge by Patel to assist on one side of a partisan battle that has roiled Texas politics for days would be a breach of how the FBI has historically operated – one that could pose a number of thorny questions for courts.

“This is not how we do things in the United States,” said Anthony Michael Kreis, a constitutional law professor at Georgia State College of Law. “Or at least not how we’re supposed to.”

What’s happened so far?

In a statement Thursday, Cornyn, who is facing a tough Republican primary challenge this year from Texas Attorney General Ken Paxton, said he sought Patel’s assistance in recent days in locating Democrats who decamped from Texas on Sunday to avoid a vote on a Republican-led push to redraw the state’s congressional maps.

Under the Texas Constitution, at least 100 of the Texas House’s 150 members must be present to provide a quorum for any votes, and the departures have brought a special session to a standstill. Gov. Greg Abbott (R) and Paxton have called Democrats’ departure at best a dereliction of their duty to their constituents and at worst a crime, and have vowed to use “every tool at their disposal” to bring the missing lawmakers back.

Texas House Speaker Dustin Burrows (R) has issued civil arrest warrants ordering the House’s sergeant at arms to track down and detain the lawmakers and, if necessary, arrest them to force them back to their jobs. GOP officials have also filed suits in Texas and Illinois, where several of the Democrats have fled, seeking to compel their return or to oust some of the missing lawmakers from their elected positions.

What role could the FBI play?

Legal experts widely agree that the FBI has little authority to intervene in what is largely a dispute based in state law.

Quorum breaking is not a crime – and, in fact, has become something of a tradition in Texas, most recently with instances of Democrats leaving the state in 2003 and 2021 to avoid contentious votes.

The Texas Supreme Court reiterated the legality of that tactic in a ruling four years ago, when a group of Democratic lawmakers decamped from the state amid a fight about voting legislation. However, the justices also found that the state’s constitution outlines measures by which the state House could compel the attendance of absent members through penalties. None of those involve the assistance of federal law enforcement.

For FBI agents to arrest anyone involved in the current effort, the lawmakers would have to first be accused of committing a federal crime or shown to have fled Texas to avoid prosecution on state charges, said Richard Painter, an attorney who served as associate White House counsel during President George W. Bush’s administration. Neither of those things has occurred.

Abbott ordered the Texas Rangers to investigate the missing legislators for “potential bribery and any other potential legal violations” – an order tied to unsubstantiated allegations he’s floated that the lawmakers committed bribery by “soliciting funds to evade the fines they will incur under House rules” for missing votes. So far no charges have been filed.

The civil warrants issued by the state House speaker are not tied to criminal charges and are not signed by judges. They can be enforced only by state authorities, who do not have jurisdiction to make out-of-state arrests.

“The FBI has no role in this whatsoever – no legitimate role,” Painter said.

Cornyn on Friday suggested on social media that the Democrats could be prosecuted under a federal statute that makes it illegal to cross state lines to carry out unlawful activities – in this case avoiding legal process of those civil warrants. Some legal experts acknowledged that federal authorities could use such a theory to try to justify intervening, but they said such a move would probably encounter pushback from federal judges.

Still, they added, with a Justice Department and FBI that have repeatedly shown themselves willing to align federal law enforcement priorities with the president’s whims, the true test of how involved the FBI becomes could come down to how much pressure President Donald Trump brings to bear.

“We’re just living in an era where grievance and retaliation have become the hallmark of government,” said Kreis, the Georgia State professor. “And there doesn’t seem to be any ideological commitment beyond that.”

What has happened in the past?

In 2003, when more than 50 Democrats in the state legislature decamped from Austin amid another heated redistricting battle, Texas officials made multiple requests to the Justice Department, the FBI and the Department of Homeland Security to help track them down to have them return to the state.

An investigation by the Justice Department’s inspector general later that year found only one instance of an FBI special agent providing any aid. He called one of the missing legislators, who said he and his colleagues were in Oklahoma. The agent passed that information along to state law enforcement officials, the report said, but there was no evidence that the bureau had taken any affirmative steps on its own to bring the legislators back.

Internally, Justice Department officials scoffed at the prospect that federal authorities would intervene – with one senior official calling it a “wacko” idea and another referring to it as a “hornet’s nest,” according to the inspector general’s report.

In the end, the department never reached the point of conducting an in-depth analysis on whether there might be a justifiable legal basis for federal involvement because officials never considered it a realistic option, William E. Moschella, who served as an assistant attorney general at the time, said in an interview Friday.

How are Democrats responding?

Texas Democrats and their aides in Illinois have been on high alert for any signs of an FBI presence. Lawmakers have been in near-constant communication with their attorneys about the scope of federal law enforcement’s power and other issues.

“An America where we use law enforcement to hunt down opponents is not an America that’s recognizable to me,” said state Rep. John Bucy (D). He said he had not seen any law enforcement presence at the hotel where many are staying, outside of local police officers who have responded to two bomb threats in recent days.

State Rep. Armando Walle (D), a civil lawyer who broke quorum traveling first to Massachusetts, then Illinois, said he received a security briefing Thursday after Cornyn said the FBI was involved.

“You’ve got to be cautious,” he said, but added: “I’m not concerned about the FBI because they don’t have any jurisdiction over us here. We’re not felons.”

Walle, who’s in his ninth term, also broke quorum in 2021 but said the stakes are higher now given the national spotlight and fractious partisan atmosphere.

“They’re trying to placate their base,” he said of Texas GOP leaders. “These are the extreme measures they’re trying to impose on us because we’re trying to stand up for our people.”

In Washington, Democratic members of the House Oversight Committee pressed Patel and Attorney General Pam Bondi in a letter Friday to clarify the FBI’s role in what they described as an “abuse of federal public safety resources for completely political purposes and without a law enforcement rationale.”

“These reports suggest that the FBI is diverting federal law enforcement away from fighting terrorism, drug trafficking, and other federal crimes to instead harass and target Texans’ duly elected representatives, and thus raise urgent questions about the legal basis, scale, and appropriateness of federal law enforcement involvement in a state-level political matter,” they wrote.

How are Republicans responding?

Abbott, Texas’s governor, told NBC News in an interview Thursday evening that he had not spoken to Trump about a potential role for the federal government in ending the standoff. However, Trump earlier said that at some point the FBI “may have to get involved.”

During an abbreviated session of the Texas House on Friday, Burrows, the Republican speaker, issued a warning to his quorum-breaking colleagues.

“Be reminded that the FBI’s assistance has reportedly been enlisted,” he said, “and their powers are not confined to any state or state’s boundaries.”

Burrows met with Republican caucus members privately afterward, said Republican state Rep. Brent Money. That briefing focused largely on efforts underway by state authorities, including pending lawsuits and inquiries by Paxton and Abbott into bringing bribery charges, and did not offer any detailed explanation of steps being taken by the FBI.

Money said his constituents want Texas GOP leaders to take action.

“I hear about it everywhere I go – my kid’s football practice, church, work and family events, restaurants,” he said. “People recognize me, and they’re like, ‘Shouldn’t you be out rounding up Democrats?’”