DNC election lawyer and 2020 litigation hero Marc Elias has some strong advice for all of us: It's time to shore up our democratic institutions before a smarter authoritarian Republican than Trump takes over.
December 17, 2020

DNC lawyer and 'Kraken buster' Marc Elias has some strong advice for the country: Fix these democratic institutions before the next authoritarian wannabe comes along.

Writing on his Democracy Docket website, Elias warns not to assume that because the democracy survived and institutions held this time, they will next time. He has specific recommendations for ways to shore up the institutions to keep it from being defeated as well as preventing the kind of frivolous abuse of the legal system we saw in the last month.

"Trumpism has taught us that, for our democracy to survive, we cannot allow ourselves to be exposed to public evils from private vices," writes Elias. "This means hardening our institutions of democracy and making them more explicit. This will need to take many forms, but we must start with those that force our nation’s leaders to do better."

Here are the batch of suggestions he has to "force our nation's leaders to do better":

First, every election-related lawsuit should have to explicitly state in the caption of the complaint whether the plaintiff is claiming fraud. Claims of fraud must be held to the highest pleading standard—providing the details of who, what, when and how much. If plaintiffs do not claim fraud, they need to say so. When a lawsuit claiming fraud is dismissed, judges should be required to make a specific finding that the claim of fraud was denied.

Second, state bar associations should promulgate specific rules of ethical conduct aimed at anti-democratic efforts. Just as attorneys owe an obligation to the court, they should owe obligations to democracy and democratic institutions. Lawyers should not be allowed to recklessly shout fraud in the parking lot but quietly disclaim it in the courtroom.

Finally, the House and Senate must strengthen their internal rules to prevent Members from undermining democracy. Candidates who, through public statements or court filings, cast doubt on an election that they won should not be seated without formal inquiry into the validity of the election credentials. Members should also be cautioned from making statements, outside of official channels, casting doubt on the validity of an election other than one for a seat in their own chamber.

I would add to this that the House and Senate must use their oversight powers and powers of the purse to limit the executive, from defunding White House activities to cutting funds to specific agencies off who refuse to submit to House oversight activities. One of the reasons Trump has gotten away with what he has is because of the institutional support he's received from the Department of Homeland Security, the Department of Justice, and more.

We've seen what a corrupt, impeached president can do. We need to see Congress use their powers to counter that.

[Video above: Marc Elias assures Joy Reid the institutions have held. This time.]

Bonus: On Deadline White House Wednesday, Elias' dog Bode steals the show.

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