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2022 Desperation: Dem Lawyer Marc Elias Threatens Lawsuits To Disqualify GOP House Members

2022 Desperation: Dem Lawyer Marc Elias Threatens Lawsuits To Disqualify GOP House Members

It’s a combination of bluster, giving hope to Democrats, and planning to drain Republican coffers, but the lack of likelihood of success won’t deter the Clinton campaign lawyer whose firm was the driving force behind the discredited “Steele Dossier”.

The Democrats are in trouble and they know it.

Republicans are poised to sweep the midterms and wrest back control of both houses of Congress.

But the Democrats’ rulebook was written by Machiavelli, not the Marquess of Queensbury. They are brawlers who use scorched earth tactics to give themselves every electoral advantage. And their principal legal strategist is Marc Elias.

Elias served as general counsel to Hillary Clinton’s 2016 presidential campaign and in that role was responsible for the hiring of Fusion GPS, the oppo-research firm that created the infamous “Steele dossier.” The false statements in the dossier were used to smear Donald Trump’s presidential campaign of colluding with the Russian government, and were used to justify the FBI’s spying on Donald Trump’s presidential campaign.

After Trump was elected, Democrats used the phony collusion narrative – enthusiastically promoted by the Democrats’ media allies – to sabotage the president’s agenda by subjecting him to a two-year investigation by special counsel Robert Mueller into the allegations of Russian collusion. Trump, of course, was ultimately exonerated by Mueller of collusion.

Elias next worked with the Democratic Party establishment to exploit the COVID-19 pandemic to change state election rules in the run-up to the 2020 election. He was the driving force behind 32 election-related lawsuits in 19 states that sought to overturn state election laws that protected against voter fraud – namely, Elias sought to expand mail-in voting, dilute signature verification  and witness requirements, expand ballot harvesting by third parties, eliminate voter ID, and increase the number of ballot drop-box locations.

This year, following as it does the decennial census, Elias is spearheading dozens of legal challenges to various states’ redistricting efforts in an effort to generate Democrat-friendly maps for the next decade.

But these challenges will take years to sort out, and the Democrats are short on time.

Biden’s botched handling of COVID, the economy, the southern border, and the withdrawal from Afghanistan – not to mention his failure to get his legislative agenda across the finish line – doesn’t give Democrats much to run on in 2022.

Unable to meaningfully address the kitchen table issues concerning most voters, the Democrats instead are making the Jan. 6 riot the centerpiece of their campaign.  As CNN put it, they are asking voters “to punish Republicans who have either aided Trump’s anti-Democratic maneuvers or stood idly by as his allies took hold of the party” that day.

And that’s where Elias comes in.

In his “prediction for 2022,” Elias tweeted that “before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress.”

He followed that up with another tweet stating that “members of Congress who engaged in insurrection or rebellion against the United States are not eligible to serve in Congress.”

He doesn’t name names, but we can surmise that he’s got his eye on legislators like those listed in this Rolling Stone article.

Section 3 of the Fourteenth Amendment

Section 3 of the Fourteenth Amendment – also known as the Disqualification Clause – was added to the Fourteenth Amendment to disqualify former government officials who aided the cause of the Confederate states during the Civil War, and it provides as follows:

“No person shall be a Senator or Representative in Congress … who, having previously taken an oath, as [among other things] a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

But it’s far from clear that the Democrats can rely on the Disqualification Clause the way Elias says they can.

Courts Lack Jurisdiction

To begin, while Elias’s tweet threatens “litigation” under Section 3 of the Fourteenth Amendment, courts don’t have jurisdiction to entertain such challenges.  According to legal scholars, that section specifies “qualifications” for Members of Congress and the Senate, but under Article I, section 5, clause 1 of the Constitution, “each House shall be the Judge of the … Qualifications of its own Members.”

As Justice Scalia cogently wrote when he sat on the D.C. Circuit, that provision “states not merely that each House ‘may judge’ these matters, but that each House ‘shall be the Judge.’” Hence, the courts “simply lack jurisdiction” to adjudicate Disqualification Clause contests.

Questionable Enforceability After The Amnesty Act

Next, even if courts could hear such claims, it’s debatable whether the Disqualification Clause is even enforceable today.  That’s because, in 1872, the 42nd Congress enacted a statute known as the Amnesty Act, which “remove[d] political disabilities imposed by the Fourteenth Article of the Amendments of the Constitution of the United States.”  Passed by a two-thirds majority of both houses of Congress and signed into law by President Grant, the Amnesty Act stated simply and directly:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled [two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of the amendments of the Constitution of the United States are hereby removed from all persons whomever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.”

Because the Amnesty Act applied without temporal limitations to “all persons” other than those who fell into its narrow exceptions, a credible argument can be made that the Disqualification Clause is no longer enforceable unless the Amnesty Act is amended or repealed.

That said, the House invoked the Disqualification Clause in 1919, well after the Amnesty Act was passed, and refused to seat a socialist congressman named Victor Berger who had been convicted under the Espionage Act after having aided Germany during World War I.  Berger didn’t raise the Amnesty Act argument, but he didn’t need to – the Supreme Court overturned his conviction and cleared the way for him to serve three terms in Congress.  The Amnesty Act therefore remains an untested legal theory.

Non-Justiciable Political Question

Even if courts have the judicial authority to adjudicate Disqualification Clause disputes, however, the question remains whether such power should be exercised.

In Baker v. Carr, the Supreme Court held that where the Constitution assigns an issue to the elected, or political, branches to resolve, the courts should not intrude.

This approach – known as the “political question” doctrine – is rooted in the separation of powers and applies here.

Standing

Were courts to hear these cases, someone with standing would have to sue the various Republican House members in a proceeding known as a petition for a writ of quo warranto in order to challenge their right to hold public office.

Presumably, the petitioners would be the Democratic candidates for the contested legislative seats.  Still, whether they could satisfy the criteria for constitutional and prudential standing would be another hurdle to clear.

Textual Ambiguities

Perhaps most significantly, ambiguities in the text of the Disqualification Clause call into question whether that clause even applies here.

Primary among them is whether the events of Jan. 6 constituted a “rebellion” or “insurrection” – hyperbolic labels that smack more of yellow journalism than legalistic accuracy.  Indeed, of the more than 720 people who were arrested for participating in the events of Jan. 6, none were criminally charged with “Rebellion or Insurrection” under the federal criminal code.

Other terms in the Disqualification Clause – such as “aid or comfort” and “enemies” – are equally vague and subject to challenge, too.

Only once all of these issues are ironed out can the question of whether current Members of Congress engaged in conduct within the embrace of Section 3 be put to a factfinder.

Conclusion

Given the legal obstacles Elias would face, it would be a steep uphill battle for him to succeed on the merits in this sort of lawsuit.

Maybe his tweets are just braggadocio intended to keep the blue checkmarks salivating.

But then again, maybe not.  Success can be measured in different ways, and even if Elias can’t actually knock Republican candidates off the ballot, at least he can brand them as conspirators and insurrectionists and keep Jan. 6, not pocketbook issues, in the news and in the front of voters’ minds. And lawsuits – even frivolous ones – can drain campaign resources and time and distract candidates’ focus from their races.

While this sort of litigation abuse is unethical under each state’s rules of professional conduct, don’t expect that to deter Elias – he’s already been sanctioned by the Court of Appeals for the Fifth Circuit and it hasn’t slowed him down.

Perhaps Elias can’t stop the GOP from taking over the majority in the House, but his and similar efforts might possibly limit the degree of the party imbalance.

On a recent War Room: Pandemic, Steve Bannon said that the only thing keeping the GOP from winning a 100 seat majority in the House in 2022 is Marc Elias:

“He’s pure evil, but man that brother is smart, tough.  He’s the standard.  We gotta match that guy ….  This is not about winning 10 or 15 or 20 seats and taking over the House.  This could be a landmark in American political history.  If you want [Ilhan] Omar [and] all these people out of your lives, get a 100-seat majority and then you never have to listen to them anymore …. We have a monumental chance, like in 1932, 1994 and 2010.  This is a breakpoint in American history …. And establishment Republicans … don’t have the guts to stand up to the Mark Eliases of the world.  This is what I admire about the Democrats. They’re pure smash-mouth all the time.  [Marc Elias] is now saying that he’s going to start suing guys around the country on the Constitution saying that you’re an insurrectionist so you can’t even run in certain districts.  This is the sort of smash-mouth I admire.  I admire that. He’s crazy, but he’s a fighter.”

Republicans are on track to win in November, but athey should take nothing for granted.

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Comments

The Gentle Grizzly | January 5, 2022 at 7:41 am

Navy people will know what I mean when i say this man needs a paint locker discussion.

I think the Army calls them wall to wall conversations.

In any service: a blanket party.

It becomes more apparent with each day that we will have to be utilizing the 2A soon…in defense.

caseoftheblues | January 5, 2022 at 7:58 am

By his standards there isn’t a single democrat that is eligible to serve…

    henrybowman in reply to caseoftheblues. | January 5, 2022 at 2:07 pm

    ^ This.

    “who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

    Constitution, not government, not administration.

    We maintain that the January 6th unpleasantness was in defense of the constitution, to protect if from the enemies thereof.

    He said, she said.

    Your move.

This clown and Democrats in general are sounding more USSRish everyday.

    Even worse, they sound like the CCP in need of committing a Tienanmen Square or two, in order to consolidate their power.

      The Gentle Grizzly in reply to dmo. | January 5, 2022 at 8:58 am

      The question is, will all the big talkers about the second amendment actually do anything? That is not a reflection to anyone on here, I’m talking in general.

        Grizz, no they won’t. 2A more likely to be deployed to fight off roving criminals in our streets. I think it more likely that armed action is likely within government agencies as factions choose sides. Maybe even armed conflict between government agencies for the same reasons. This will, if not stopped, spill into the streets of some cities and there will be an increase of targets meaning institutions like the media.

        We have all heard “Don’t shoot ’til you see the whites of their eyes”. The meaning goes much deeper and when your life is so threatened that you can see the “whites of his eyes”, you can see the true intent of his actions and will find it within you to fight back. You probably would surprise yourself should the opportunity arise.

          The Gentle Grizzly in reply to scooterjay. | January 5, 2022 at 10:37 am

          BLM and AntiFEH! will likely say, “Don’t shoot until you see the eyes of the whites!”

          daniel_ream in reply to scooterjay. | January 5, 2022 at 12:24 pm

          The meaning goes much deeper

          No, it really doesn’t. That aphorism was coined when muzzle-loading black-powder weapons were the only kind of firearm, and such are incredibly unreliable and inaccurate at range. They only hold one shot at a time. The first shot is loaded before battle in calm conditions and will be the most reliable and accurate shot fired; after the first shot, they have to be hastily reloaded in battlefield conditions, which makes all subsequent shots much more likely to misfire or go wide. The time to reload also means a charging enemy is likely to close to bayonet range before the second shot can be loaded and the musket brought to bear.

          “Don’t fire until you see the whites of their eyes” just means “save that first shot until there’s no chance of missing”.

          Pasadena Peabody in reply to scooterjay. | January 5, 2022 at 6:23 pm

          in reply to Gentle Grizzly

          I would say that expression is kinda rough Gentle Grizzly, but that would be an oxymoron.

This 14th amendment challenge would allow conservatives to finally overturn this amendment, which many legal scholars agree was never properly ratified. The Supreme Court has avoided any rulings on its legitimacy for over 150 years, confining itself to its expanding case law. With a packed supreme court, we conservatives can finally overturn the Democrat’s exploitation of birthright citizenship.

Steven Brizel | January 5, 2022 at 8:45 am

Marc Elias is an ambulance chaser for the Democrats whose fingerprints are all over the so called dossier that was the basis for the fake investigation and the first fake impeachment trial, and the end-run around the Electors’ Clause. One of these days, a disciplinary panel will catch up with his shenanigans which have already resulted in sanctions by one appellate court

    henrybowman in reply to Steven Brizel. | January 5, 2022 at 2:10 pm

    One strategy would be actually to bring those charges and tie the old reprobate up in defending himself rather than making mischief. But that would require… Republicans.

    Subotai Bahadur in reply to Steven Brizel. | January 5, 2022 at 10:10 pm

    A disciplinary panel????

    What did it take to remove Roland Freisler from office in Germany?

    Subotai Bahadur

Isn’t this guy disbarred yet?

And Ellias’ great Russian collusion hoax wasn’t a type of insurrection on its own? That should disqualify the all the Dimocrats in Congress. This guy is nothing but a BS salesman.

    Milhouse in reply to Ghost Rider. | January 5, 2022 at 10:23 am

    No, it wasn’t. But if we’re going to go all loosey-goosey on the definition of “insurrection”, then sure, anything goes, so why not?

      Ironclaw in reply to Milhouse. | January 5, 2022 at 2:26 pm

      Tell me, Who has been going all loosey-goosey on the definition of insurrection for the entire last year? That, after they spent the previous FOUR years trying to overturn the results of an election much less questionable than 2020.

Every reporter with morals should start every interview with Elias: “So you plan on disqualifying Republican Congressional candidates by way of the 14th amendment. Other than your plan being unconstitutional, against the law, and against established Supreme Court precedence, why do you think you have a chance? Or are you just blowing smoke up the ignorant Democrat base in hopes to get them to vote?”

    Milhouse in reply to georgfelis. | January 5, 2022 at 10:26 am

    Other than all that he does have a chance, at least on the lower court level, because there are enough ignorant or malicious judges who will gladly go along with it. And this could destroy someone’s campaign; a successful appeal might come too late.

      Admittedly, true. I keep underestimating the corruption of the political Left and how many supposedly neutral judges aren’t.

      lichau in reply to Milhouse. | January 5, 2022 at 12:11 pm

      In the immortal (now) words of Harry Reid: “We won, didn’t we?”

      lichau in reply to Milhouse. | January 5, 2022 at 6:53 pm

      How long has what’s his name–Durham–been fiddling around with the 2016 election?

      Milhouse, you make the relevant point–messing around with elections has effect with the close of polls (or whenever the mail in’s get there); irregularities take YEARS to “investigate” and are only investigated if Democrats lose.

    Ghostrider in reply to georgfelis. | January 5, 2022 at 12:44 pm

    Never underestimate David Plouffe, Eric Holder and Marc Elias for what they can and will do to get Democrats elected and to retain power.

    Their first step is always their public announcement of the next wave of their frontal election assault. They always tell you what outrageous, sinister, evil tactic they are planning and going to do before they press go.

    Why don’t Republicans take Elias more seriously and have him removed from the “conversation”?

    Lucifer Morningstar in reply to georgfelis. | January 6, 2022 at 10:14 am

    . . . why do you think you have a chance?

    But the point isn’t whether or not Elias can win such court cases. The point is to file the cases and get as many Republican candidates as possible to waste their time & money defending against such cases they cannot run an effective election campaign. Win or lose, Elias will have accomplished his goal.

Primary among them is whether the events of Jan. 6 constituted a “rebellion” or “insurrection” –

That’s not even a question. They clearly didn’t.

Indeed, of the more than 720 people who were arrested for participating in the events of Jan. 6, none were criminally charged with “Rebellion or Insurrection” under the federal criminal code.

However this isn’t a valid argument that they didn’t. The fact that prosecutors choose not to charge anyone doesn’t change what the event was. If the event had been a rebellion or an insurrection (it wasn’t) then it would remain so no matter what charges were or weren’t laid afterwards.

Other terms in the Disqualification Clause – such as “aid or comfort” and “enemies” – are equally vague and subject to challenge, too.

Not so. There’s a solid body of law about those terms, from the history of treason charges. And it’s clear that Donald Trump is not an “enemy of the United States”, so giving him aid or comfort can neither be treason nor trigger this clause. If Democrats argue otherwise, that would open the door for Republican congressmen to consider the Democrat Party an “enemy of the USA” and act accordingly.

Indeed there are those (I don’t agree with them) who seriously argue that nobody can be an “enemy of the USA” unless Congress has officially declared war on them. Supposedly North Korea and even North Vietnam were not “enemies of the USA” during their respective wars, and Cuba and the USSR were never such. And this is an argument historically mostly made by Democrats. Well, Congress never declared war against President Trump.

    I still think the terminology of J6 is asounding:
    -To call something a murder, you generally have a body and somebody charged with murder
    -To call something arson, you generally have a fire and somebody charged with setting it
    -To call something kidnapping you generally have somebody who was kidnapped and somebody charged with it

    –But to call something an insurrection, all you need is a hundred people charged with trespassing into an area that sees millions of tourists a year.

      Milhouse in reply to georgfelis. | January 5, 2022 at 3:09 pm

      The whole treatment of those people is sui generis and vindictive. They’re being made an example of. It’s shameful and the next president ought to pardon them all and see what sort of discipline can be brought against their prosecutors, and even the judges, though I don’t see what can be done against them.

      But the fact that they’re not charged with insurrection isn’t a good argument that they didn’t commit it. The argument that they didn’t commit insurrection is simply that nothing that happened that day can possibly be shoehorned into the definition of that word. Even had the protesters succeeded in their goal of persuading Congress not to count the disputed electors’ votes, and even had that changed the election result, that would still not have been an insurrection or rebellion.

        alaskabob in reply to Milhouse. | January 5, 2022 at 5:36 pm

        The imprisoned have been functionally stripped of their rights. The government has gotten away with this… the WHOLE government including the Republicans. You are correct that those that chose this punishment will never pay for their abuse. But it is fair warning as to the malicious intent of the ruling class. Just a good reminder that we live in a country that more and more functions as an autocracy.

      Gosport in reply to georgfelis. | January 5, 2022 at 3:15 pm

      Lest we allow the media to bury this in the forgettery:

      Dem protestors against Trump’s acquital stormed INTO THE CAPITOL in Feb 2020. How many of them spent more than a night in jail? How many were convicted, of anything?

      Where were the leftist cries of ‘insurrection’ then?

      https://www.washingtonpost.com/local/10-women-chanting-trump-is-guilty-arrested-in-capitol-rotunda-amid-protest-over-impeachment-vote/2020/02/05/def761ca-4837-11ea-bc78-8a18f7afcee7_story.html

The BLM/Antifa riots, though, at least in Portland and Seattle, where they established “autonomous zones”, clearly do fit the definition of “insurrection or rebellion”. Likely the one in Minneapolis too, where they demolished a police station, but one could argue that was only a rebellion against the state of Minnesota, or even only against the city of Minneapolis. At any rate, anyone who participated in those riots, or who aided those rioters, ought to be vulnerable to action under this section, if such action is viable.

Eventually even Elias will go too far for his judicial fellow travelers; this seems likely to be the thing that breaks him and some of the d/prog lawfare organs.

“They are brawlers who use scorched earth tactics to give themselves every electoral advantage.”

And conservatives have Mitch McConnell and Kevin McCarthy. 2 lace curtain Irish with no spines.

2smartforlibs | January 5, 2022 at 11:12 am

With the squad in power, Are you sure that’s a move you want to make?

Wow. This is an impressive, well-researched deep dive into this issue. BRAVO to the author.

“Given the legal obstacles Elias would face, it would be a steep uphill battle for him to succeed on the merits in this sort of lawsuit.”

Any court’s kick-the-can dodge of ‘Standing’ sticks out like a sore thumb in this issue. How has Elias (or the DNC) been harmed – real or imagined?

After Nov. 2020, Trump initiated a slew of law suits to contest shady election rules and results only to have all dismissed out of hand. Texas, joined by 17 other states, brought suit against 4 different states for violation of the Electors Clause – on an issue SCOTUS truly was created to intervene; disputes between the states – only to have SCOTUS punt.

So, again, how has Elias (or the DNC) been harmed – real or imagined – from Jan. 6th ‘mostly peaceful protest’?

No standing.

    Milhouse in reply to LB1901. | January 5, 2022 at 3:11 pm

    That’s a non-issue. Obviously the plaintiffs with standing would be the Democrat candidates running against these congressmen.

      Gosport in reply to Milhouse. | January 5, 2022 at 3:44 pm

      That’s a bit of a double-edged sword and any Dem candidate should think long and hard before they allow themselves to be associated with this tactic.

      Charge the Republican? Fine, even if it gets kicked out for lack of standing they have made their headlines.

      But put the Dem candidate name on the case as plaintiff? May as well go home and let the lawyers and the Judge decide your election for you because it will be largely out of you hands.

      Among other things, they will have to be extremely careful in what they say both in and of of court. There is even a chance the the court will chose to apply widespan gag orders. Not to mention the impact of them losing the case…

      None of which is going to play well with the voters.

Meh, more saber rattling to energize a base that doesn’t want to be seen in public right now due to Biden’s saggy numerals. Don’t close your eyes!

Weren’t we told a few months ago John Durham was hot on Elias’ trail with a grand jury convened and all that jazz?

Do Marc Elias’ tweets sound like a guy who’s worried?

I’d call Marc Elias a slimy slug, but that wouldn’t be fair…to slugs. Unlike Elias, slugs have a discernible and useful reason for existing.

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