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 – 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.
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.
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.
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.
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.
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.
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.
CLICK HERE FOR FULL VERSION OF THIS STORY