Meet the lawyer Democrats call when it's recount time

Meet the lawyer Democrats call when it's recount time

When President TrumpDonald John TrumpHouse Republicans move to block Yemen war-powers votes for rest of Congress Trump says he's considering 10 to 12 contenders for chief of staff Michael Flynn asks judge to spare him from jail time MORE twice last week mentioned Marc Elias, the Democratic lawyer heading the party's legal strategy in a contentious Florida recount, he gave voice to fears many Republicans secretly harbor: That any time Elias gets involved in a recount, he tends to win.

Elias is behind a flurry of legal activity that represents a last-ditch effort to save Sen. Bill NelsonClarence (Bill) William NelsonCoal supporter Manchin named top Dem on Senate Energy Committee GOP opens door to new NC election amid fraud claims More than 6,000 mail-in ballots in Florida were not counted: officials MORE (D-Fla.) and Tallahassee Mayor Andrew Gillum (D), the party's gubernatorial and Senate candidate, in their respective races. With recounts underway, Nelson trails Gov. Rick Scott (R) by 12,500 votes, while Gillum trails former Rep. Ron DeSantisRonald Dion DeSantisGillum to speak at gathering of top Dem donors: report GOP opens door to new NC election amid fraud claims Gillum reached out to O’Rourke amid 2020 speculation: report MORE (R) by 33,000 votes.

ADVERTISEMENT

Elias, 49 and a long-suffering fan of his hometown New York Giants, is accustomed to playing from behind.

He occupies a unique and virtually unmatched position within the Democratic legal universe.

When a Democrat faces a potential recount situation, Elias's phone is the first to ring. When the party wants to take legal action over what they say are political boundaries unfairly gerrymandered by Republican state legislators, Elias is the one to file suit and argue in court.

And when some Democrats wanted to increase the amount of money their wealthiest donors could spend on candidates and campaigns — at the same time the party was railing against the influence of money in politics — Elias crafted the language, both before the Federal Election Commission and in delicate and secretive negotiations with then-House Speaker John BoehnerJohn Andrew BoehnerMeadows looks to make his move Fractious GOP vows to unify in House minority Three Republicans battle to succeed Meadows at House Freedom Caucus MORE (R-Ohio), that helped usher hundreds of millions in barely regulated money into the political system.

"He is the party’s leading election lawyer. He’s the party’s leading redistricting lawyer. He’s the chief counselor on election-facing legal issues for Democrats," said Ron Klain, a former chief of staff to former Vice Presidents Al GoreAlbert (Al) Arnold GoreCalifornia dreamin’ in the 2020 presidential race Santorum: Dems have a chance in 2020 if they pick someone ‘unexpected’ Don’t romanticize Bush now that he’s gone — learn from him MORE and Joe BidenJoseph (Joe) Robinette BidenUniversity of Delaware renames public policy school after Joe Biden Dems attracted to O'Rourke because he demonstrates civility, says political analyst The case for reauthorizing VAWA MORE.

In a measure of how ubiquitous Elias is within the Democratic Party, the next Congress will include just three Senate Democrats who are not represented by Elias and his firm, Perkins Coie. Together, the firm's political law practice represents the Democratic National Committee, the House, Senate and gubernatorial campaign committees and 100 members of the House of Representatives.

For more than a decade, Elias has had a hand in some of the most controversial and fraught political legal fights across the country.

ADVERTISEMENT

If Elias did anything in particular to earn Trump's ire, it was likely his firm's role in funding some of the research behind a dossier of opposition research into Trump conducted by the former British spy Christopher Steele. Elias, who served as general counsel to Hillary ClintonHillary Diane Rodham ClintonRoger Stone challenges Dems to produce WikiLeaks evidence Steve King asks Google CEO for names of employees to see if they're liberals O'Rourke edges out Biden in MoveOn straw poll MORE's 2016 presidential campaign, retained the opposition research firm Fusion GPS to compile the information that eventually made its way to the FBI.

On Friday, as he prepared to board Marine One en route to Paris, Trump made an offhanded reference to "this guy, Elias, who represented Hillary Clinton and a lot of very shady things." Later, on Twitter, Trump called Elias the Democrats' "best Election stealing lawyer."

Elias took the jabs as a "badge of honor," according to one friend.

Tall, ebullient and quick-witted, Elias arrived in Washington hoping to practice criminal law. But he found a mentor in Robert Bauer, the Democratic Party's top election lawyer.

One of Elias's first jobs involved producing documents from the Democratic National Committee during the Clinton administration, when the party was under scrutiny by a special counsel for its fundraising practices.

Elias could not be reached for comment Wednesday, as he shuttled between courtrooms in Florida. But half a dozen friends and allies described his rise through Washington's political circles, and several critics cast him as one of the leading enablers of big money in politics.

When then-Sen. Harry ReidHarry Mason ReidManchin’s likely senior role on key energy panel rankles progressives Water wars won’t be won on a battlefield Poll finds most Americans and most women don’t want Pelosi as Speaker MORE (D-Nev.) finished just a few hundred votes ahead of then-Rep. John Ensign (R) in a costly Senate battle in 1998, Elias worked on Reid's behalf as the ballots were recounted, ingratiating himself to the man who would later lead Senate Democrats for a decade.

The experience, along with the 2000 Florida recount that handed the presidency to George W. Bush, taught Elias that recounts were about more than just counting ballots; they were extensions of the campaigns themselves, in which battles over media narratives could determine the ultimate winner of a contest.

Elias is perhaps best known for his role in one of the nation's closest Senate races ever, in Minnesota in 2008. Democrat Al FrankenAlan (Al) Stuart FrankenKamala Harris to keep seat on Judiciary Committee Report says ex-CBS executive Les Moonves 'deliberately lied' to investigators about allegations Norm Coleman: ‘I do believe’ I beat Al Franken in 2008 MORE trailed incumbent Sen. Norm Coleman (R) by just a few hundred votes when Elias landed in Minneapolis; Elias quickly began a drumbeat, maintained at almost daily news conferences in which he answered questions directly from the media, demanding that every vote be counted.

After half a year of legal wrangling over fewer than 1,000 absentee ballots, Coleman's 215-vote lead became Franken's 225-vote win.

"Not all of those votes would have been counted without Marc's strategy," said Eric Schultz, who worked for Franken on that race and is now a senior adviser to former President Obama.

In subsequent years, Elias has become the man to call if a Democrat is heading to a recount. He worked for Virginia Attorney General Mark Herring (D) in 2013, and for North Carolina Gov. Roy Cooper (D) in 2016 — when, even as some votes were still being counted, he urged the incumbent, Republican Pat McCrory, to concede.

Before any Election Day, the two parties typically retain a plane idling on a tarmac somewhere near Washington, so they can dispatch a lawyer to a critical battleground state at the last minute. The Democratic plane, if it takes off, is carrying Marc Elias.

More recently, Elias has led legal challenges to Republican-drawn political boundaries in states like Virginia, North Carolina and Texas. He has filed suit on behalf of voters who say they have been disenfranchised, either by laws that require voters to show identification at the polls or rules that govern where polling places can be located.

Friends and allies say he is a rare combination of legal mind and political operative, someone who understands both the courtroom and the way a campaign functions.

"He is both a very serious lawyer and someone who understands politics very well, and the two don’t always go hand-in-hand together," said Matt Miller, who worked with Elias as a top Democratic Senatorial Campaign Committee staffer.

Between recounts, Elias established himself as a top Democratic voice at the Federal Election Commission (FEC), an ordinarily sleepy bureaucratic backwater that underwent enormous changes in the decade following McCain-Feingold campaign finance regulation.

Arguing before the commission, Elias found an unexpected ally in perhaps the FEC's most influential member, the Republican Don McGahn, who later served as candidate Trump's top lawyer and as President Trump's first White House counsel. McGahn, an unabashed opponent of restrictions on political spending, found himself agreeing with Elias's view of campaign finance law on a regular basis.

After pieces of McCain-Feingold were struck down by courts, most notably in the Citizens United v. FEC decision, Elias asked the FEC to issue an administrative ruling, known as an advisory opinion, that became the legal underpinning for a new type of political action committee that could accept unlimited contributions.

The top political lawyer for Democrats, in other words, became the father of the super PAC — to the chagrin of campaign finance reform advocates who believed the Democratic Party was their natural home.

"Marc Elias has been very effective in doing a great deal of damage to our campaign finance laws," said Craig Holman, the top lobbyist for the good-government group Public Citizen. "He's been instrumental in tearing down the laws that are trying to level the playing field."

Later, during negotiations over a year-end spending deal dubbed the "cromnibus," Elias helped craft legislative language at Reid's request. Working with BoehnerJohn Andrew BoehnerMeadows looks to make his move Fractious GOP vows to unify in House minority Three Republicans battle to succeed Meadows at House Freedom Caucus MORE's office, that dramatically increased the amount of money wealthy donors could give to political party committees.

"Though Democratic candidates often call for campaign finance reform on the campaign trail, they pay Elias and his law firm to deregulate money in politics behind the scenes, through Federal Election Commission proceedings, litigation, legislation drafting and aggressive campaign lawyering," Paul S. Ryan, the vice president of policy and litigation at the pro-reform group Common Cause, said in an email.

Elias's allies say he is doing nothing more than representing the best interests of his clients, rather than the most idealistic version of the rules under which they wish the system operated.

"Marc's job is to help his clients know the law and follow the law," Klain said. "Most of his clients are for changing the law — and that's their job."