English novelist Robert Smith Surtees once said, “There are three sorts of lawyers – able, unable, and lamentable.” That view was never truer than this month as the United States Supreme Court hears from a lawyer who may be more controversial than the underlying case. In an election case that will require at least two conservative justices to join their liberal colleagues, the Democratic National Committee (DNC) picked one of the most polarizing and controversial attorneys in the country: Marc Elias.
Elias clearly has supporters and advocates who value his aggressive reputation and past work for Democratic causes. He is viewed as the unblinking, unhesitating advocate of Democratic candidates with a long background on election challenges.
Yet, many view his tactics and record as deeply troubling, including some on the left. (For the record, I have long been a critic of Elias due to his past controversies).
Generally, parties seek to focus courts on the merits rather than the lawyer chosen for an appeal. The DNC appears to have discarded that approach.
Elias is a previously sanctioned attorney who was also a key player in the secret funding of the Steele dossier, leading to the false Russian collusion scandal. Courts have also criticized his group for supporting raw partisan gerrymandering efforts. Making this even more curious is the fact that Elias has attacked the conservative majority, including calling them “increasingly hostile to civil rights.”
The Russian Collusion Hoax and Concealment
It was Elias who was the general counsel to the Clinton presidential campaign when it secretly funded the infamous Steele dossier and pushed the false Alfa Bank conspiracy. (His fellow Perkins Coie partner, Michael Sussmann, was later indicted but acquitted).
Clinton campaign officials denied any involvement in the Steele Dossier. When journalists discovered after the election that the Clinton campaign hid payments for the Steele dossier as “legal fees” among the $5.6 million paid to Perkins Coie, they were reportedly stonewalled.
New York Times reporter Ken Vogel said at the time that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman later wrote that “Folks involved in funding this lied about it, and with sanctimony, for a year.”
Notably, Elias was allegedly sitting next to John Podesta, Clinton’s campaign chairman, when he was questioned by Congress about the Steele dossier and categorically denied any contractual agreement with Fusion GPS.
Democratic Attack Lawyer
The Clinton campaign and the Democratic National Committee were ultimately sanctioned by the FEC over the handling of the funding of the dossier through his prior firm.
Nevertheless, other Democratic groups continued to hire Elias. He unsuccessfully led efforts to challenge Democratic electoral losses. Elias was also the subject of intense criticism after a tweet that some have viewed as inherently racist.
While routinely billing himself as a “defender of democracy,” Elias was often accused of working against democratic choice. In Maryland, Elias’s team filed in support of an abusive gerrymandering of the election districts that a court found not only violated Maryland law but the state constitution’s equal protection, free speech and free elections clauses. The court found that the map “subverts the will of those governed.”
One media site accused Elias and his group of “making millions off gerrymandering efforts” while publicly denouncing Republican gerrymandering.
The New York Times reported that “detractors on the left fault him for empowering the ultrarich to exercise disproportionate political influence, and for pushing aggressive initiatives that have backfired at times, playing into the hands of the Republicans he strives to thwart.”
In 2024, Elias’s legal team was also accused of pushing “to bar third-party presidential candidates — including Cornel West — from swing state ballots where they might siphon votes from the Democratic nominee [Kamala Harris].”
Likewise, the New York Times reported that Elias’s firm’s work “on behalf of a Soros-funded PAC in Texas…was opposed by a left-leaning election watchdog as undermining laws intended to limit the influence of major donors.”
His group’s work for New York redistricting was ridiculed as not only ignoring the express will of the voters to end such gerrymandering but also effectively negating the votes of Republican voters.
In 2024, the Chief Judge of the Western District of Wisconsin not only rejected but ridiculed the Elias Law Group for one of its challenges. Judge James Peterson (an Obama appointee) said that the argument “simply does not make any sense.”
Attacks on the Conservative Majority
Making his appearance even more intriguing is Elias’s past criticism of the conservative justices individually and as a group.
Last year, Elias suggested that the conservative justices were fostering the MAGA agenda and observed that the Court is seen by the right “as a force multiplier in [Trump’s] authoritarian quest, rather than an obstacle. Long after this election is over, that may well be the legacy this Supreme Court leaves behind.”
He has also supported the criminal referral of Justice Clarence Thomas to the Justice Department and said that he is benefiting from a “two-tier justice system.”
On Justice Alito, he told former Senator Al Franken that he could not say whether the justice was voting on principle or just “his animus for Democrats.”
He also criticized how the conservative justices “constantly misread in how to act” or conduct themselves so not to harm the Court.
The Elias Factor
Elias’s predictions on the Court’s likely actions are equally sketchy. For example, he chastized other liberal lawyers for raising the “independent state legislature theory” before the Court. Elias dismissed the Court as a majority of virtual political hacks, warning, “given the composition of the Supreme Court, no one who cares about free and fair elections should be rushing to get the Supreme Court to potentially create any doctrine where none exists.”
The Court ultimately rejected the theory in a major victory for the left in Moore v. Harper.
To make this even more baffling, the Democrats will need every vote that they can get. This week, the Supreme Court delivered a blow to Democratic efforts to gain control over the House in the midterm elections. As Democratic states like California are further gerrymandering their districts to add Democratic members, Democratic groups are challenging efforts by Texas and Republican states to engage in the same redistricting. Given past gerrymandering in blue states, red states have more ability to add members in this tit-for-tat effort.
Now, on December 9th, the DNC will have Elias make its case in National Republican Senatorial Committee v. Federal Election Commission, asking the court to strike down the coordinated party expenditure limits in campaigns.
Notably, Elias is not viewed by many, including some on the left, as a force for good on campaign finance issues. The New York Times reported that Elias “played a key role in carving new pathways for big money into the political process.”
Fortunately, for the Democrats, those conservative justices whom Elias has trashed appointed someone to defend the law (since the administration is supporting the challengers). They appointed Roman Martinez, a former clerk to Chief Justice John Roberts and then-Judge Brett Kavanaugh, who will offer an unburdened and likely strong case for preserving the law and prior precedent.
However, as good as Martinez is expected to be, he will then be joined by a counsel viewed as positively radioactive. Arguing for protecting the integrity of elections will be someone viewed by many as having played a critical role in one of the greatest political hoaxes in history, and someone who heads groups sanctioned by both the judiciary and the federal government for legal actions.
Before the normally staid Court, it is a moment not to be missed. I expect that the justices will show far more restraint than Elias has shown in his public attacks. (After all, these justices must decide these appeals on the law: not on the counsel or personal bias). Indeed, some may find the notoriety to be mildly entertaining. Yet, for many, using Elias to defend the integrity of the election process will be more than just “lamentable.” It borders on the laughable.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of the best-selling book “The Indispensable Right: Free Speech in an Age of Rage.”