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.” //

Marc E. Elias
@marceelias
I am making clear that members of Congress who engaged in insurrection or rebellion against the United States are not eligible to serve in Congress.

The fact that this is so triggering to the GOP speaks volumes. https://twitter.com/dangainor/status/1473724106260496392
2:03 PM · Dec 22, 2021

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, //

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. //

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. //

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.