Jul 31, 2023 - Politics & Policy

Scoop: Why Biden's team soured on Dems' election lawyer

President Biden and Democratic lawyer Marc Elias

President Biden and Democratic lawyer Marc Elias. Photos: Drew Angerer/Getty Images, Robert Willett/The News & Observer via AP

President Biden's team recently split with the Democratic Party's longtime lawyer, Marc Elias, because of disagreements with Elias' legal strategies and strained personal relationships, according to several people familiar with the dispute.

Why it matters: The divorce has created a divide in the party’s legal apparatus going into the 2024 election — with Elias representing Democrats' committees for House, Senate and state legislative races, while Biden's campaign and the Democratic National Committee mostly get legal help elsewhere.

The big picture: The split between Biden's team and Elias — who had represented the DNC since 2009 — reflects a larger fight within the party on the best legal approach to expand and protect voting rules.

  • Elias argues Democrats should be fighting on every possible front — filing a flurry of lawsuits and exerting public pressure through the media.
  • Biden’s team, long guided by lawyer Bob Bauer, is concerned that while Elias' approach may be emotionally satisfying and make for good headlines, it can backfire with the current conservative makeup of the judiciary.
  • The president's team wants to be more selective in picking legal fights, especially going into a 2024 election that could be especially litigious.

The intrigue: Beyond the philosophical disagreements, Biden's team became fed up with Elias during the first two years of the administration.

  • Elias often did not consult the DNC or the White House before filing lawsuits affecting voting rights and election laws in key states and at times disregarded their concerns with cases, Democrats familiar with the internal deliberations said.
  • Biden officials found out Elias had filed some lawsuits only when he announced them — often on MSNBC or Twitter.
  • "Marc was the DNC’s counsel and he was consistently giving them and the president’s team the middle finger," a person familiar with the tensions told Axios.
  • A firm spokesperson told Axios: "Elias Law Group represents a wide range of Democratic parties and candidates, and progressive organizations. It is ultimately our clients’ decision if and when to provide notice of a lawsuit to others.”
  • Some on Biden's team also were frustrated by Elias' big bills. For the 2020 general election and his work on winning 60-plus post-election lawsuits, the DNC and the Biden campaign paid Elias' firm, Perkins Coie, more than $20 million. (In 2021, Elias started his own practice, Elias Law Group.)
  • "Marc has created a legal strategy he has convinced people is a political strategy, that it is actually a business strategy," said one person familiar with the frustrations.

The tension between Biden's team and Elias also stems in part from the complicated relationship between Elias and Bauer, who is married to senior Biden aide Anita Dunn.

  • When Bauer became White House counsel for President Obama in 2009, Bauer supported Elias succeeding him as head of the political law practice at Perkins Coie, which Bauer had started in the 1980s.

But the two powerhouse lawyers have different strategies and styles.

  • Bauer prefers to operate behind the scenes, while Elias has embraced being a public figure with TV appearances, an active Twitter account, and splashy magazine profiles.
  • When many other leading Democratic campaigns — including Kamala Harris' — hired Perkins Coie during the primary season in 2019, Biden’s campaign pointedly did not. Instead its legal team was led by Bauer and Dana Remus, who eventually became Biden's White House counsel.

Zoom in: Bauer and Elias faced off last year during the negotiations on strengthening the Electoral Count Act, the law that Donald Trump tried to get Mike Pence to exploit on Jan. 6, 2021.

  • Bauer had helped craft the bipartisan bill behind the scenes.
  • Elias was openly critical of the proposed bill, writing: "Lacking precision in critical areas, the bill feels less like the product of legislative compromise and more like something constructed in a law school faculty lounge."

Many people involved in the negotiations felt that Elias' tactics were more grandstanding than constructive.

  • His public critiques frustrated some senators who co-sponsored the bill — including Mark Warner (D-Va.) — given that Elias also serves as their campaign lawyer. Warner's office declined to comment.
  • “Thank god we got that through, no thanks to Marc,” a Democrat involved in the negotiations told Axios.
  • “Bob Bauer was a constructive and insightful sounding board for the senators as they developed the proposals, while Marc Elias’ contribution was serving as a Twitter troll who tried to undermine the effort at every turn,” said one Senate aide.
  • Elias ultimately supported the final version when it was close to a vote, citing changes made. An aide to Senate Majority Leader Chuck Schumer (D-N.Y.) said the senator met with Elias about the bill and many of his suggestions made it into the law.

What they're saying: Elias told Axios that his legal tactics reflect Biden's stated goals.

  • "When I see the president of the United States and the vice president of the United States saying this is 'Jim Crow, 2.0,' and the people living under it are saying, 'Please, people help us' — that is powerful support," he said.
  • Critics say Elias' more aggressive approach led to losses such as the Supreme Court ruling in an Arizona case that opened the door for states to impose some restrictions on voting.
  • But Elias also has scored victories: one in which the Supreme Court rejected North Carolina's attempt to scuttle judicial review of election laws, and another in which the court ruled that an Alabama congressional map was illegal because it hindered minority representation.

Ron Klain, Biden's former chief of staff who is involved in the president's re-election campaign, told Axios that "relations between Marc Elias and Biden world remain good."

  • Klain said the DNC's separation from Elias was about creating a more efficient structure. "Given that Marc’s principal client is the [Democratic Senatorial Campaign Committee], the DNC should have legal leadership focused on the DNC."
  • In a statement, Schumer praised Elias as "one of the toughest and most effective defenders of voting rights and our democracy with a long track record of successes."
  • Through a spokesperson, Bauer declined to comment.

What's next: Elias likely won't be taking the lead on the re-election campaign's legal efforts, but some in Biden's orbit expect him to be heavily involved in recounts — believing that Elias' aggressive approach is better-suited to such battles.

  • Klain told Axios that Bauer "will be the president's chief adviser on such matters — our team captain — as he was in the face of unprecedented challenges in 2020. But all of Biden world values Marc’s important contributions to the party-wide effort."
  • Since April, the DNC has established an in-house legal team while using outside firms such as WilmerHale and Covington & Burling, according to campaign finance records.
  • DNC spokesperson Ammar Moussa, citing a victory in June against the GOP in Pennsylvania on mail voting, told Axios: “The DNC works with a number of law firms on voting rights litigation, compliance, contracting and more, and will not slow in the fight to protect voting rights from Republican attacks."
Go deeper