Trump’s Toughest Foe Could Be Democrat Lawfare Viper Marc Elias

(RealClearInvestigations)—If Donald Trump gets past Kamala Harris on Nov. 5, he’ll likely face a fiercer opponent in court – her campaign attorney, Marc Elias.

The longtime Democratic Party lawyer has already filed more than 60 preelection lawsuits to stop Trump from becoming president again by combatting what he calls Republican “voter suppression” efforts such as requiring voters to provide identification at the polls. Echoing a standard Democratic talking point, Elias maintains that such requirements are “racist” strategies designed to make it harder for minorities to vote.

At the same time, Elias has been sending letters to election officials in Georgia and other key swing states threatening legal action if they uphold challenges to voter rolls to remove noncitizens and other ineligible registrants. Some Georgia officials complain that his intimidation tactics are interfering with county registrars’ ability to check the qualifications of voters.

If Trump is declared the winner, the hard-charging attorney threatens to overturn his election by deploying an army of more than 75 lawyers to sue for ballot recounts in several swing states. Trump, in turn, has threatened to lock Elias up for election interference, as ABC News moderator David Muir pointed out in last month’s presidential debate between Trump and Kamala Harris.

Elias symbolizes the growing impact of lawfare on U.S. elections as both parties are turning increasingly to the courts to gain an edge. According to a newly disclosed Republican National Committee memo, the Trump campaign has filed or joined 123 election lawsuits in 26 states, 82 of which are in battleground states, to combat what it describes as voter fraud. It has also hired thousands of lawyers to fend off what a Trump lawyer expects will be “an onslaught of litigation” from the Harris campaign contesting the results of the election. Of course, that army of lawyers will also be used to push recounts should Trump lose.

Election experts say that these GOP efforts – fueled, in part, by Trump’s claim that Democrats stole the 2020 election – are playing catch-up. Democrats have long been at the forefront of strategies to use the court to impact elections, and no one has been more important to that cause than Elias, who keeps a sign behind his desk that warns: “BEWARE OF ATTACK DEMOCRAT.”

To many Democrats, he is a hero. The headline of a 2022 profile of Elias in the New Yorker called Elias, “The First Defense Against Trump’s Assault on Democracy.”

Conservatives tend to see Elias in a much different light. “Mr. Elias is part of a massive and well-funded partisan leftist operation notorious for using lawfare to undermine election integrity,” says Tom Fitton, president of Judicial Watch. “Making it easier to steal elections is the antithesis of ‘democracy.’”

Nevertheless, in the expanding world of lawfare, Elias, a 55-year-old graduate of Duke University’s law school, continues to stand apart. While scoring many victories in the courthouse, he has also worked closely with campaigns on partisan efforts that have little to do with jurisprudence.

More Than a Courtroom Partisan

As general counsel to Hillary Clinton’s 2016 presidential campaign, he helped lead the effort to manufacture and leak spurious “opposition research” claiming to reveal illicit ties between Trump and Russia.

Elias later testified that he was worried – then as now – that Trump was a threat to democracy: “I received information that was troubling as someone who cares about democracy.” That “information” turned out to be a fictitious “dossier” linking Trump to the Kremlin crafted by former British spook and FBI informant Christopher Steele, who huddled with Elias in his Washington office.

“Some of the information that was in it I think has actually proved true. It was accurate and important,” Elias testified in a closed-door hearing on Capitol Hill in December 2017, according to a declassified transcript. Actually, Steele’s allegations proved to be a collection of improbable rumors and fabricated allegations invented by Steele’s top researcher and a Clinton campaign adviser.

Nonetheless, the disinformation was fed to the FBI and media, igniting criminal investigations (including illegal electronic surveillance), congressional probes, and a media frenzy that crippled Trump’s presidency with bad press for years.

In a parallel operation against Trump, Elias worked with his then-law partner Michael Sussmann and Clinton campaign officials – including Jake Sullivan, who is now President Biden’s national security adviser – to develop misleading evidence of a “secret hotline” between Trump and Russian President Vladimir Putin that allegedly used a “back channel” connection between email servers at Trump Tower and Russian-owned Alfa Bank. These false allegations were posted on social media and brought to the attention of the FBI, triggering a separate criminal investigation targeting Trump and his campaign. Like other Russiagate probes, it was eventually discredited.

But the damage was done. By spreading fake Russian dirt on Trump, Elias was able to create scandals that dogged Trump for years, tarnishing his electability. The Democratic lawyer’s machinations, however, drew scrutiny from other investigators and hurt his own reputation – albeit temporarily.

During his probe of Russiagate, Special Counsel John Durham found Elias intentionally sought to conceal Clinton’s role in the dossier. According to court records, Elias acted as a cutout for more than $1 million in campaign payments for the dossier. By laundering its payments through a law firm, the Clinton campaign and Elias were able to claim attorney-client confidentiality when Durham sought their internal emails (the assertion of that privilege also blocked investigators from accessing communications between Elias and Steele’s immediate employer, the Washington-based opposition research firm, FusionGPS). But their shell game got the Clinton campaign in trouble with the Federal Election Commission, which later fined it and the Democratic National Committee $113,000 for misreporting the purpose of the payments as “legal expenses,” rather than opposition research, in violation of FEC laws.

The Durham probe, which Elias insists was “politically motivated,” nonetheless raised ethical issues with the D.C. Bar and Elias’ former law firm, Perkins Coie, reportedly leading to their breakup in August 2021, when Elias suddenly left the powerhouse after almost 30 years. The firm, which Elias had joined fresh out of law school in 1993, grew “increasingly uncomfortable” with the unwanted scrutiny the Durham probe invited on it, according to published reports. The veteran prosecutor exposed questionable billing practices by the firm. Durham also revealed the Democratic firm had set up an FBI workspace within its Washington offices, further calling into question the FBI’s impartiality in investigating Trump.

In late 2021, Elias opened his own firm, the Elias Law Group, but soon lost major clients who reportedly grew weary of his aggressive tactics and go-it-alone style. Last year, the DNC severed its 15-year relationship with Elias; then more recently, the Biden campaign parted company with him. In 2020, Elias had quarterbacked Biden’s legal team that fought Trump’s claims in court that the election had been stolen. He also beat back GOP measures to ensure election integrity after Democrats took advantage of the COVID-19 pandemic to dramatically loosen rules for voting – including allowing ballot harvesting, drop boxes, and ballots arriving up to four days after Election Day to still be counted.

Top Democratic Party officials were said to sour on Elias after he filed election-related lawsuits without consulting with them, some of which backfired with unfavorable – and lasting – rulings. Biden’s team reportedly also became frustrated with his fees. Elias billed the DNC and Biden campaign more than $20 million during the 2020 election cycle.

But Elias has since taken on other clients – including Kamala Harris – who have more than made up for the loss in revenue. So far in this election cycle, the latest FEC filings show the Elias Law Group has received a total of more than $22 million in disbursements from a host of major Democratic and anti-Trump clients. In addition to the Harris For President campaign, where he’s in charge of recounts and post-election litigation (it’s not known if he also has a hand in opposition research, as he did in 2016), Elias has signed retainer agreements with the:

• Democratic Congressional Campaign Committee
• Democratic Senatorial Campaign Committee
• [Democratic] Senate Majority PAC
• Stop Trump PAC
• The Lincoln Project

Elias has also been retained by Mind The Gap, a political action committee set up to help Democrats take back the House. Mind The Gap was founded by Barbara Fried, the mother of convicted crypto kingpin Sam Bankman-Fried. In a lawsuit filed last year, Fried, a Stanford law professor, is accused of orchestrating a potentially illegal scheme to funnel political contributions from her son to her PAC.

Among Elias’ other clients are Democratic Rep. Adam Schiff, a leader of House efforts to impeach Trump who, records show, is shelling out a six-figure retainer for Elias as he runs for an open U.S. Senate seat in California, and Democratic Rep. Dan Goldman, who previously served as Schiff’s chief counsel during the first Trump impeachment.

Elias also represents Democratic Sen. Sherrod Brown of Ohio, who polls show is narrowly leading GOP challenger Bernie Moreno in his race for reelection, according to the RealClearPolitics Average. That race could determine control of the Senate.

The business of political lawfare – or “protecting democracy,” as Elias calls his job – has made the super lawyer super-rich. The most recent property records show Elias lives in a $2.6 million mansion in Great Falls, Va., and FEC records show he has the wherewithal to donate generous sums to his party, including a combined total of at least $65,000 in gifts to the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee.

“Aggressive Bully”

Elias first earned his reputation as a fierce and effective advocate in 2009, when he won an eight-month recount battle to get his client, Al Franken, elected to the Senate. He also scored a series of victories against the Trump campaign in 2020.

“My team and I beat [Trump] in court 60-plus times,” Elias boasted on X last month, in his trademark brashness. “Here is my message to the GOP: If you try to subvert the election in 2024, you will be sued and you will lose.”

Representing Biden electors in Arizona, for example, Elias in late 2020 defeated a post-election Trump lawsuit alleging voter fraud in Maricopa County by arguing at trial the plaintiff showed the court only “garden variety errors” but provided “no evidence about misconduct, no evidence about fraud, no evidence about illegal votes.”

But Elias’ aggressive posture has also backfired.

In 2016, he sued Arizona to strike down two laws that, he argued, made it harder for blacks and Hispanics to vote. One banned the practice of partisans going door-to-door and collecting mail-in ballots and bringing them to a polling place, and the other canceled ballots that were cast at the wrong precinct. Elias argued the measures violated a key part of the Voting Rights Act – Section 2 – prohibiting states from passing voting laws that discriminate based on race. After a lower court in Arizona refused to block the measures prior to the election, Elias appealed and won a favorable ruling from the liberal U.S. Ninth Circuit Court of Appeals. But in the case, Brnovich v. DNC,  the U.S. Supreme Court sided with Arizona, ruling that the state’s ballot-integrity measures lacked discriminatory intent.

UCLA law professor Rick Hasen speculates that the conservative Supreme Court used the Brnovich case as “an opportunity to weaken” Section 2, which Democratic voting-rights lawyers have relied on as a tool for civil rights enforcement. Regardless of the justices’ motives, the Brnovich decision does establish a precedent whereby voting rules resulting in only small disparities for voters of color can no longer be challenged. Some Democrats complain that Elias’ loss in Arizona opened the door for all red states to impose “restrictions” on voting.

“Marc didn’t listen to such criticism and he brought an extremely weak Voting Rights Act case in Arizona to disastrous results,” Hasen wrote in a recent blog. “It is fine to be zealous in one’s advocacy,” he added, “but one need not be an aggressive bully.”

Elias has also aggravated judges. He’s been disciplined for filing frivolous lawsuits and motions. In 2021, for instance, the U.S. Court of Appeals for the Fifth Circuit sanctioned Elias for refiling a motion that was previously rejected by a lower court “without disclosing the previous denial.” The appellate court ordered him to pay attorneys’ fees and court costs incurred by opponents in the Texas election case over his “duplicative” motion.

“Using lawfare as Elias does is legal – unless the litigation is frivolous,” said Paul Kamenar, general counsel for the National Legal and Policy Center in Washington.

Elias and an attorney representing him did not reply to requests for comment. But in a previous interview, he dismissed the criticism that he is unnecessarily belligerent, arguing that the “existential threat Trump poses to democracy” demands tough action. He acknowledged that he can be brusque but explained he discarded lawyerly circumspection and restraint after Trump’s 2016 election “radicalized” him.

“And so I became a much more polarized person and a more polarizing lawyer,” Elias told The New Yorker.

In a recent column for his Democracy Docket website, Elias attacked Trump as another “Hitler” who is “plotting to overthrow American democracy.” He even warned that a reelected Trump “is almost certain to convert the military into his personal domestic police force” and “seize voting machines [and] control ballot counting,” even though state laws govern elections.

Still, he denies filing groundless grievances over voting rules. He insists many of the tighter rules imposed by Republicans serve no legitimate purpose. And he doesn’t buy their argument that they’re needed to stop fraudulent voting because, as he claims, voter fraud is rare (or, more precisely, rarely prosecuted).

Anti-Trump War Room

“Republicans are working every day to make it harder to vote,” Elias recently posted on X. “They are also planning to subvert the elections when they lose.”

Noting the GOP’s flurry of preelection lawsuits, including in the battleground states of Pennsylvania, Michigan, Nevada, and North Carolina, Elias recently told MSNBC that Republicans will do anything to push Trump over the top because he cannot win on his own. “He is set to lose to Kamala Harris,” Elias claimed, “and Republicans know that their only way of winning this election is by intimidating voters, making it hard for voters to participate in the process, and by setting up a structure after the election for them to be able to engage in the kind of frivolous and harassing litigation and ultimately the kind of tactics we saw in 2020 – but on a much wider scale.”

To combat this, “My law firm is litigating 66 voting and election lawsuits in 23 states,” he said on X, with most of them concentrated in Arizona, Georgia, and Wisconsin. “And we are winning!” By comparison, Elias filed 20 voting-related lawsuits in 14 states at this point in the 2020 election cycle, making him more than three times as litigious this time.

His anti-Trump legal war room includes a for-profit operation he founded in 2020 called Democracy Docket LLC, which employs 16 and is housed in the same office as his law firm, records show. The digital platform tracks several hundred voting-related cases and publishes a weekly organ distributed to more than 225,000 paid subscribers (at $120 a year), who include lawyers, politicians, and journalists.

A sister operation, Democracy Docket Legal Fund, supports election litigation to protect the voting rights of primarily minority voters. Another spinoff, the Democracy Docket Action Fund, raises money for voting rights lawsuits. According to the Capital Research Center, the two organizations are bankrolled by millions of dollars in so-called dark money, including from leftwing billionaire George Soros – whom Elias has called “a hero.” Through these vehicles, Elias has virtually “unlimited funding” to challenge any voting law in any state if he thinks it will help his party and his Democratic clients win elections, according to Americans for Public Trust, a government watchdog group based in Alexandria, Va.

While Elias publicly claims he’s “defending free and fair elections,” it’s clear from his actions behind the scenes that his motives are purely partisan, critics say. Last month, he sent a letter to Virginia state election officials threatening to sue them if they don’t remove Cornel West, the presidential nominee of the leftwing Justice for All Party, from the state ballot. Elias is also trying to keep West, a progressive black college professor, off the ballot in 15 other states, including key battlegrounds. These efforts clearly have nothing to do with voting rights. Elias is simply worried West will bleed off enough votes from his Democratic client Kamala Harris to cost her victories in states where she is leading by razor-thin margins against Trump.

In a column he wrote last year for Democracy Docket, Elias admitted: “A vote for No Labels, Robert F. Kennedy Jr., Cornel West or any other third-party candidate is effectively a vote for Trump.”

In addition, Elias is quietly working with immigrant advocacy groups that want to make it possible for noncitizens to vote. In August, for example, Elias stepped in to represent El Pueblo in its quest to stop North Carolina’s State Board of Elections from removing noncitizens from voter registration rolls as required by a 2023 law. An estimated 325,000 “unauthorized” immigrants reside in the state.

As more than a dozen jurisdictions run by Democrats now allow noncitizens to vote in some local elections, the push to redefine who is eligible for the franchise promises to become an ever more potent and divisive issue in American politics. Much of this debate will almost certainly be hashed out in the courtroom battles and behind-the-scenes political maneuvering that are Marc Elias’ special practice.

After this article was published, Marc Elias’s representative said a donation Elias had made to the nonprofit Just Neighbors was not in support of illegal immigrants. He said it was to help victims of a snowstorm in Vermont.