Marc Elias, one of the most prominent Democratic lawyers in the country, is predicting that Democrats will attempt to prevent some duly-elected Republican House members from serving, and that they may even attempt to file litigation to prevent some Republican members from serving.
Elias served as the general counsel for the failed Democratic presidential campaigns of both John Kerry in 2004 and Hillary Clinton in 2016. He is a former partner at Perkins Coie, the Democrat-aligned law firm that was heavily tied to the now-discredited Steele memo that served as a pretext much of the investigation into former President Donald Trump’s connections with the Russian government.
Elias also supervised the Democratic Party’s national litigation response to the lawsuits brought by former President Donald Trump challenging the results of the 2020 election. He has been fairly described as “the most prominent Democratic attorney in America.” He is currently leading the Democrats’ partisan challenges to Republican-drawn redistricting maps in the House.
His prediction, therefore, is more than idle speculation, and may in fact be a trial balloon for an actual Democratic strategy.
On Twitter earlier this week, Elias said, “My prediction for 2022: 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. We may even see litigation.”
Section 3 of the 14th Amendment, which was passed during the post-Civil War reconstruction period, was designed to prevent officeholders under the former Confederate States of America from serving in the United States Congress. It states that, “No person shall be a Senator or Representative in Congress… who…. shall have engaged in insurrection or rebellion against [the United States].”
Elias’ tweet seems to imply that Democrats may attempt to remove Republicans from their seats on the basis of having supported the riots on January 6th, during which pro-Trump protesters stormed the Capitol in an attempt to prevent the certification of the Electoral College vote.
Republicans are widely expected to take back control of the House of Representatives in the 2020 elections. Democrats currently hold a very slim 221-213 lead in Congress’ lower chamber, and the incumbent president’s party usually loses some number of seats in midterm elections. Furthermore, polling indicates not only that President Joe Biden remains unpopular, but also that voters increasingly prefer a Republican majority in the House, which could indicate a large Republican wave is coming.