
Marc Elias is an election litigation powerhouse. And he has no nostalgia for the legal and political norms Trump has flattened.
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Mark Elias
Learn more at capella.edu For 2026, what we're going to see is an effort by Republicans to again using more sophisticated methods to try to disenfranchise voters both before election day and after election. And that's why the Department of Justice is right now suing 18 blue states for access to their full voter files.
Nicole
Hi everyone. Welcome to the Best People Podcast. The Best People podcast is about people like this week's guest. He is someone who never says no to coming on the show and having the difficult conversations. He's one of a very small universe of people who said yes in the earliest days after Donald Trump was elected a second time. A lot of our regulars needed to catch their breath, process the news and absorb what was to come. But not this week's guest on the Best People podcast. He is our sort of moral center in terms of understanding the stakes for our democracy of a second Trump presidency. But he also keeps our eye on the future, on the things that are happening that may not be getting the attention they deserve.
Mark Elias
So.
Nicole
So without any further ado, this is the Best People. And this is Mark Elias. Hello, my friend.
Mark Elias
Hello, Nicole.
Nicole
You know, I have a list. I don't keep a lot of lists anymore, but I do have a list of the people that came on the broadcast the days after the 2024 election. And you're the first, second and third person on that list. Why were you ready to to talk about what so many people couldn't face yet?
Mark Elias
I think because the challenge was so clear and was clearly going to be so great. And so I don't begrudge people for taking time and space that they need. But Nicole, you probably Noticed, I don't tend to be one of those people. I tend to focus on the challenge in front of us. And it was clear to me that in the days after the 2024 election, this was gonna be worse than anyone thought. And I felt sort of an imperative to be willing to say that and not try to ease into what was going to happen, because, honestly, that's precious time lost. And I worry that sometimes those of us who are fighting for democracy and those of us who are trying to protect the most vulnerable, when we're taking time and we're taking space, they're the ones who are paying the price.
Nicole
Yeah. This is like a luxury item. And I think I process some of the things happening to the country the way you do. I don't begrudge those people what. Whatever their process was, but I don't think it's helpful. And I wonder what you think the importance is of sort of platforming all of the sort of darkest impulses of MAGA and talking them through.
Mark Elias
Look, I think it's essential for two reasons. First of all, I think it is essential for building a durable opposition. So before you get to maga, I think that if you are not speaking truthfully to yourselves, if you are sugarcoating what is happening in your.
Nicole
The denial.
Mark Elias
Yeah. Then you are engaged honestly in a kind of luxury belief that has real consequences for others. Like, you know, it's easy for people who are very well off and who, you know, are not facing some of these challenges to just say, I won't believe it is as bad as they say it is. But that doesn't allow us to organize the kind of opposition we need. So I think that for people who are right thinking, I think being exposed to it is important. And then, as you point out, you know, Donald Trump preys on weakness, and he preys on the fact that the other side won't be as aggressive or be willing to fight as hard as he is. And so, you know, I do think that what you've done and what we've all done, I think has hurt the MAGA movement. I think it has slowed them down. I think it has thrown sand in the gears.
Nicole
Where do you think we are right now?
Mark Elias
So I think we're in a very sort of perilous point in the authoritarian march. So I think the first half of last year was Donald Trump resetting the chessboard. He was essentially saying, look, we're not going to have independent agencies. I'm going to. To dominate the Department of Justice. And so he sort of restructured government. And a lot of that was focused on in the terms of, like, Doge and. And that. But I think he was doing something much more fundamental, which was saying, you know, I control every aspect of government, and therefore these are all at my disposal, I think, for the second half of the year.
Nicole
And then normalizing that. Right. So, like, the outrage cycle has abated now and people just accept that he pulls all the levers at doj.
Mark Elias
Correct. And then the second one was really desensitizing people to the effects of that. You know, I think that there is much too little outrage right now about what's happening with people being dragged off the streets, citizens being handcuffed and interrogated. Like, I think that is generating now less and less news. I think the fact that you have these overt political prosecutions now with Susie Weil basically saying on the record that maybe I thought we could have it, do it for 90 days, but, oh, well, who could blame him? And, you know, there's a lot of, like, interest in that, but there's not, like, fundamental outrage. So I think that's the second phase now going into 2026. Now the test is going to be whether we can hold free and fair elections. Because ultimately, the thing that could stop him is not going to be the courts. It's not even going to be the protests. I know that there are people who will disagree with me about that. The three and a half percent rule. To me, the thing that's going to change his behavior, the thing that ultimately hems in him, is if we see the outcome in the midterm elections, do that. And so the question now is, like, what those elections will look like?
Nicole
What do you think they'll look like?
Mark Elias
They're going to be real messy. That's kind of the most polite thing I can say. They're going to be messy. They're going to be messy because Donald Trump wants them to be messy and because messiness allows him to exert more executive power and allows him to spread more lies. So that's one reason they'll be messy. They'll also be messy, honestly.
Nicole
Do you mean messy like slow to count, or do you mean messy like chaos and bomb threats? Describe messy. Because I feel like we've been through a lot of election days together, and there's. There's manufactured mess and then there's after the fact mess.
Mark Elias
Here is the thing. We are going to see an effort to make it harder for people to vote, for there to be voter suppression and for there to be challenges to certification and those will take various forms. Some of them will take the form of governmental action, things that Donald Trump can do. Some of them will be inspired action, action that he inspires among his base. Some of them may be totally independent. I mean, you know, you mentioned one bomb threats. We have now had two successive elections, one in 2024 and one in 2025, which saw widespread bomb threats being called in. So you have Donald Trump putting this pressure on the system. You have him inspiring, you know, the former January Sixers and the election deniers and all them to put pressure on this system. And then you have foreign actors putting pressure on the system. But all of that is taking place against a backdrop in which the Department of Justice itself is collecting a massive database on voters and itself is getting involved in ways that we've never seen before.
Nicole
So I saw your call on employees at the Department of Justice to really do a gut check about their role in that.
Mark Elias
If all of a sudden the RNC was suing your state for access to your Social Security number, your date of birth, your address, all the stuff we went through, that would cause a stir. But by having the Department of Justice do it, by having the patina of career DOJ officials, first of all, if you're a DOJ right now and you're involved in these cases, I don't give a crap when you started. I don't care whether you were hired by Pam Bondi herself or you were Merrick Garland's favorite prosecutor. If you're working for this Department of Justice and you're collecting his records, you're on the bad guy side. That's what's going on.
Nicole
Will you talk about that here? That hasn't gotten enough attention.
Mark Elias
Yeah, I'm glad you mentioned this, because I thought it might actually be the moment I don't get invited back on Ms. Now.
Nicole
I thought it never happened. Why?
Mark Elias
Because if you remember, the first time I sort of waded into this waters, and then I've waded in, like, since then, as you say, more broadly. But the first time I waded in this waters was actually live on your show. If you remember, James Comey got indicted. And I was there for the full two hours. And at one point, there was kind of a discussion that involved a couple of things. One was what we can learn from the fact that there were no career prosecutors on the indictment, that Lindsey Halligan had handled it herself.
Nicole
Right.
Mark Elias
And the second was a number of your guests referring to the fact that this is not how the Department of Justice does things. And so I Had this kind of spirited back and forth with one of your contributors, my friend.
Nicole
I remember this, but I mean, I think this was so important because this is why everyone at that table is so important. They are speaking about the institutional muscle memory, if you will. And I think your role is to tell us how far we are from that. I remember that conversation because they were saying, what's supposed to happen and what's normal? And I think you were like, guys, we're like 10 time zones from normal.
Mark Elias
Correct. That is almost verbatim what I said. And so I get frustrated because there is this sense where like, okay, we know this is abnormal because there are no career prosecutors in the room at the indictment and Lindsey Halligan is incompetent.
Nicole
And.
Mark Elias
And my point is like, no, no, we actually knew this was abnormal because Donald Trump sent a text message to Pam Bondi telling her to do this. And I'm not going to outsource my sense of whether this is right or wrong on whether they got some person who's been at the Department of Justice for a decade to be in the room. Like, that isn't the arbiter of normalness.
Nicole
I mean, I also think that our relationship on television together is sort of the story of our country's march toward authoritarianism. I think you started coming on frequently right after the 2020 election. Do I have that right?
Mark Elias
That's correct.
Nicole
So Joe Biden wins.
Mark Elias
Yep.
Nicole
And there's all this bullshit coming from the White House, and everyone is like, zombie esque. You know, Mitch McConnell's like, let Trump cry it out. Kevin McCarthy's like, oh, he's just sad because he lost. And you kind of see these forces swarming toward the dates on the calendar. No one even thinks Trump knows what the dates are on the calendar. His ignorance and his malevolence and his ability to absolutely steer the ship of the GOP toward the most anti Democratic public act in our country's history on January 6, 2021. All happens in slow motion. And I remember you start coming on talking about what's happening in Georgia and what they're trying to do in Pennsylvania and what's happening in Detroit, and you're fighting and winning all these lawsuits, but this gathering storm of what he's trying to do is still. It felt like, in your view, is happening in slow motion, but in public, and no one seems aware of it. Will you just take me back? Because it feels like everything we're girding for IN26 has its roots in what went wrong on Trump's side in 2020.
Mark Elias
That's absolutely right. And look, I think one of the reasons why you and I so oftentimes agree is because we actually both come from a more political and campaign background. And so you've seen these patterns. And so you mentioned like 2020 and what it says to 2026, like when you do a lot of elections, you.
Nicole
Start to see these things, you think in the cycle. Right.
Mark Elias
You think in a two year cycle. That's exactly right. And so you've probably never gotten out of that.
Nicole
So we, our brains are damaged. They're like studying the mom or dad.
Mark Elias
Correct, Exactly. So look, I think that what I saw happening in the run up to 2020 and in the immediate aftermath of 2020 was a strategy that Republicans had used a lighter version of in the past. Remember, I had represented Al Franken in a recount, I had represented Bill Nelson in Florida in a recount. I had represented Harry Reid in a recount. Like I had done a lot of statewide recounts before. And so you see these patterns. And one of them that Republicans had been sort of toying with for a long period of time was the idea that you could remove votes. So what's interesting about that is if you go back and I don't want to relitigate 2000 because I wasn't involved in it, but both sides were trying to add votes. And that's normally what you would say like fundamentally, sure, you may say they shouldn't be able to add this vote and you might say they should add this vote instead. But like neither side was fundamentally trying to subtract votes. And what's right, Republicans, I mean, just.
Nicole
I was involved in that. And I remember the military ballots were being championed by, I think the Bush Cheney side and the people who had not understood the butterfly ballot.
Mark Elias
Right.
Nicole
Were votes being scrutinized by the Cora Lieberman campaign. Isn't that seem like ancient history?
Mark Elias
It does.
Nicole
But you're right, it was all about putting votes back in to the column.
Mark Elias
And what was clear going into the 2020 election, like before election day, is that Republican lawyers had been floating this idea that they put under the umbrella of vote dilution, which is kind of a misnomer, but this idea that they should be able to remove votes, that votes that had been counted should be uncounted. And this struck me as a preposterous notion then. It strikes me as a preposterous notion now. But what's different is back then they had incompetent lawyers who had no facts and really had not thought this through particularly well. And so they filed a bunch of lawsuits and lost. But it was clear to me that that was going to escalate, not de escalate, as they went further and further along. So they started with this in Pennsylvania with, you know, some mail in ballots. And then by the time you get to the end of December, you've got the state of Texas trying to go to the US Supreme Court to kick out all of the mail in ballots in four states. So you go from this smaller thing to something bigger and bigger and bigger. And that's what we saw. And so as we sit here Today looking at 2026, what has happened in the intervening years is that the Republicans have put a lot of energy both in their legal, in their sort of jurisprudential underpinning of this, but also in their data collection around this. And they are much more capable at making these arguments than they were. And so I'd point you to the state Supreme Court race that was in 2024 in North Carolina, where Alison Riggs won the election by like 700 votes and then goes into the post election. And like any normal recount lawyer, Ben Ginsburg on the Republican side, me on the Democratic side, like any normal lawyer would be like, okay, Republican, you're only down 700 votes. There's like millions of ballots for sure. You could find 701 or 702 military ballots or whatever. It is like some category that you think should have been counted that wasn't. And instead they aim to disenfranchise voters and uncount their ballots. And so to me, the fact that the RNC was involved in that and they put so much energy in a state Supreme Court race to do this legal theory suggests to me where they're going. And so for 2026, what we're gonna see is an effort by Republicans to again using more sophisticated methods to try to disenfranchise voters both before election day and after election Day. And that's why the Department of Justice is right now suing 18 blue states for access to their full voter files.
Nicole
This is so scary to a lot of people. And I think, and I also wanna spend time today on your very fair and I think motivating critiques about the media. But this is where I feel like everyone gets freaked out and they just go, oh my God, next question or we're going to break. But let me kind of push in here to the degree that they're manufacturing solutions for problems that prominent Democrats and Republicans have said, don't Exist. Talk about what that does to a system that is largely devoid of fraud except on their own side.
Mark Elias
Yeah. So what it forces them to do is lie about fraud, lie about elections, and also simultaneously to manufacture fraud out of things that are not fraud. And it is that second that I want to focus your attention on for a moment. Because, you know, one of the laws that we were successful in blocking in court last year, we actually blocked it in two states, is a law that says that if you are registered to vote in more than one county or more than one state, you have committed a crime. So what I want everyone to imagine is when you last moved, did you call your local registrar to unregister yourself to vote? And the answer is no. Right. So these were not making crimes out of people voting in two places, because people don't do that. This was literally saying if you move from one house to another house and you didn't deregister from the first house, you've committed a crime when you register at the second house. Okay. And that is not a crime and it is not fraud. And the judges agreed and blocked this law.
Nicole
Yeah. It seems targeted to young people, too, who may have registered when they turned 18, but then gone off to college.
Mark Elias
You put your finger on. Yes. That's who was it was motivated by. And that's also who they anticipated enforcing against. Right. They were not doing this with the.
Nicole
Rancher who moved, you know, moved ranches. Yeah.
Mark Elias
But like this is the thing, like they've just created a category of fraud out of something that is actually not fraudulent.
Nicole
Yeah.
Mark Elias
And that is why this data collection by the Department of Justice is so dangerous. And so, Nicole, I'm going to tell you a statistic that actually I haven't shared anywhere else right now. The Department of Justice has filed in this year under Parmeet Dhillon and Pam Bondi has filed 21 lawsuits, voting lawsuits. All 21 are to gain access to voting records.
Nicole
What do they want to do with them?
Mark Elias
Well, this is the thing, right? Any effort to uncount ballots, any effort to make false fraud, the first thing you need is a data set of voters and what they have done. And of course, most of this data includes partisan data. Right. Whether you register as a Democrat or Republican. And so think about it. If you had a list, I mean, this is something the RNC has, but they don't have every piece of data. The parties don't get full voter file. They get a lot of information, but they don't get people's Social Security numbers. They don't get people's specimen signatures. But if you had a voter file with every voter as an Democrat or Republican, you knew who was black and who was white and who was male and who was female, and you knew where they lived and you knew where they moved from, and you knew where they were registered across states. You could then create a set of voters that you want to say committed fraud. And then you have Donald Trump go tweet, this is a fraud. Maybe you have him issue an executive order decreeing that whatever this thing is is illegal. And you, your lawyers file solemn lawsuits. And that is why they need this data. Because if you don't have the data, you can't know exactly. You can do it in gross, but you can't know exactly what to.
Nicole
We're going to take a quick break right here. When we're back, much more with election litigation and campaign law powerhouse Deadline White House regular Marc Elias. Stay with us. Across the country, classrooms are in crisis. Students are showing up ready to learn. But their schools don't even have funding for even the most basic supplies. On DonorsChoose, you can change that. Your donation puts books, art supplies and student smiles into the classrooms that need them most. Tis the season for action. Choose students. Make a difference today. Donate now@donorschoose.org local.
Capella University Representative
At Capella University, we believe accessible education can make a difference in people's lives. That's why we offer scholarship opportunities to all eligible students. Whether you're considering a bachelor's, master's or doctoral degree, our teams will walk you through the process and help you get the savings you are eligible for. Furthering your education is an investment in yourself. Entonces, que estas un futuro diferente esta macerca de los cres con Capella University. Learn more at capella. Edu welcome to Walgreens.
Nicole
What can I help you with today?
Mark Elias
Hi, I need a last minute gift for a Secret Santa. Something thoughtful, impressive. Not a fruit cake.
Nicole
We've got Ferrero chocolates, artisan coffees, even a spa kit. Any vibe you're going for?
Mark Elias
Whatever says, wow, this guy's great at giving gifts.
Nicole
How about this premium skincare gift set? Just needs a bow. Will look like you planned it weeks ago.
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Nicole
And what recourse? I mean, the voter file, right, is like the most valued thing that the parties possess. And there's a whole process by which campaigns wait for that date. I don't Know, if this is still the case, I haven't been on a campaign in a while. But when the government removes all pretense of following the Hatch act and all pretense of not being involved in the Department of Justice, what is to prevent all of Trump's political actors? I guess your point is nothing, nothing protects the American people's personal data. It'll now all be in the hands of his political people.
Mark Elias
Correct. And no administration has ever tried to do what they're doing with this data.
Nicole
Do you think people don't understand that? Where's the dnc? Where are the Democrats? Where are the Republicans who know that's wrong?
Mark Elias
So I think that there are people who sort of understand it, but they don't know what to do about it. But I would submit the reason why we have mid cycle redistricting the way we do in 2025 is also because it like it's the same thing. It is the ability based on computing power, AI and big data that allows a level of targeting that just didn't exist before.
Nicole
One of the things that I think aligned us is after 2020 and after January 6th and after Joe Biden was sworn in, I think you could have launched a good argument for voting rights to be the first thing that President Joe Biden pushed for. I also think that eliminating the filibuster to say voting rights in America, when saw 48 states pushing voter suppression laws predicated on this lie about fraud. I mean, that's why I wanted to start with the absence of fraud in our country and in our elections. I think that when you look at who's in the White House now, it's a waste of time to go back and sort of relitigate what was done when. But do you think that voting rights legislation will ever happen?
Mark Elias
So, look, I do think this was something that you and I agreed on. And I did everything I could to try to elevate this issue as the top line issue for the Biden administration. And frankly, for the top line issue for the Garland Department of Justice, you.
Nicole
Know, you would ask, why didn't they see that?
Mark Elias
So this is a great question, and maybe you have a better answer than I do, because the President seemed to get it.
Nicole
Like the President and the vice president.
Mark Elias
And the vice President. Yeah, I was about to say, you know, the president would give speeches on this and the vice president definitely gets it. I know that because I know her pretty well. And honestly, what's interesting is the political people around her, around him, they seem to want to campaign in 2024 on it. So, like, the question is, if they all got that this was an existential threat and they all understood that we needed this legislation, why did it slip down? And, you know, I've never worked in government, so I actually don't have as much a sense as you do or others do about how these things get prioritized. But it felt to me like presidents get like one shot or a couple of shots at something really big in their first term, and then they don't get a lot of shots after that for really big things. And so I had hoped that voting rights would be the thing, but it obviously wasn't, and then it didn't pass, and I'm not sure when that shot comes again.
Nicole
Yeah. And I think when you see everything downstream from that decision, it's a lot easier to be critical of it. I'm sure there were people making good, salient arguments about infrastructure and the other stuff that. That President Biden did and which were also very politically powerful. But if you put your democracy glasses on, this was existential, and I think we're living with the consequences. Do you go back and do any sort of sliding doors if this, then that, or are you just sort of completely focused on pressing forward and fortifying and protecting everything that is still sort of solid and functional in our democracy?
Mark Elias
I think it's one of my strengths as someone who works on campaigns is I. I almost never reflect back on past campaigns. You know, I think I've been a successful campaign lawyer and litigator because, you know, when Citizens United came down, I created super PACs, and that will make me unpopular in some quarters. You know, when.
Nicole
When the rules change, you have to win. And so if you want to win.
Mark Elias
Yeah. When Donald Trump said he wanted Texas to fight seats, remember, I came on your errands, I said Democrats, 30 seats, including nine in California.
Nicole
I have the same brain chip where it's like, well, these are the rules. I didn't make them and I'm not for them. But if these are the rules, we got to win.
Mark Elias
Right. And so the result is I don't go back to, like, think about, like, what would have happened in 2024 if this had been different, or that I try to learn from, like, mistakes I've made or things that I look at the Republicans and I'm like, wow, that was really smart. We should learn from that.
Nicole
Like, what. What are the Republicans done? That's really smart.
Mark Elias
I think that the Republicans have done two things that have been really smart. The first is they have committed to a long term jurisprudence that is now paying dividends. And I don't think that exists on the left.
Nicole
Why not?
Mark Elias
I don't know. But like, the fact is, I just argued a case in the Supreme Court like, literally last week. Over the past 50 years, this court has had opportunity to review many campaign finance laws, and it has appropriately treated many of them skeptically. But it has never wavered on one foundational pillar. Congress may limit contributions to candidates. This is a limit on party spending that was first challenged by the Republicans in a Senate race that took place when Tim Wirth ran, I think in 1986. It was either 1986 or 1988. It was before I was a lawyer, before I'd gone to law school. So this is all before my time. And this went to the supreme court in the mid-90s, and then it went to the supreme court again in 2001. Like, the Republicans have been litigating to try to strike down this limit literally for longer than I've been a lawyer. So now people look at this case and they're like, well, the Supreme Court's going to strike down this limit. And Mark, you argued this case, but, you know, you're probably going to lose. And I'm like, yeah, that's all true. And they're. And then they lament the Supreme Court. And like, that's also true. But I'm also like, they knew what they wanted and they have built and built and built toward us. So that's like, one thing that I admire. The other is that I think that they value the rules of voting more than some Democrats. So I think that there's a real sense among some parts of the pro democracy movement or the Democrat or Democratic Party that, oh, you know, it'll all work out, that, you know, maybe our voters won't be impacted as much. You know, maybe it's a dumb mander or whatever the phrase is. And I just think, man, you're not giving the credit to the people who, you know, who are designing these things that they deserve.
Nicole
You know, I think some of that is that it's hard for Democrats to give credit to a side so interconnected with malevolence. And I understand that, but I constantly study Steve Bannon, and I think that to the degree that Trump is weakened politically, it's because of the distance he's traveled from the things Steve Bannon talks about. And I find Steve Bannon's view of the world horrible. I don't agree with him on anything, but I find his sort of Read of his movement and his coalition, the most astute. I also think you learn that politics is very structural. You're making a structural argument about the Supreme Court. Republicans have structurally embedded partisan energy into interest in the Supreme Court, its makeup, its decisions. It's really. And so it's interconnected. The Federalist, everything that is political on the right is interconnected with the Supreme. I mean, on the issues, the Democrats have all of the opportunities that Republicans don't. But there's just this cultural political interconnectedness that's structural on the right. What is the thing that'll sort of shake that loose? I mean, or am I on a fool's errand kind of waiting for Democrats to wake up?
Mark Elias
So I think that what may wake them up, what needs to wake them up, what we need to have is, is the replacement of nostalgia for a forward looking program. You know, we're about to lose the post New Deal administrative state. You know, the Supreme Court is almost certainly going to rule against the slaughter in the FTC case, which will essentially end independent agencies that presidents can replace without cause. Yeah, anyone and anyone. And there is no such thing as independent agencies. Okay. And the question is, when that happens, do Democrats say, if you put us back in power, we will try to reconstruct this, or do Democrats say, okay, that was a phase of American history, that was an era of American history. And now we need a theory of government. We need an approach to moving forward that accepts that reality and moves forward. That's why I use Citizens United as an example. You know, I understand that there are some in the campaign finance reform community who don't necessarily care for me because, well, as I said after Citizens United United, I started and I help counsel a lot of Pro Democratic Super PACs, including the biggest one, the presidential arena, the House and Senate arena. And that is because, like, we're not going back. Like Citizen United is the law of the land. And if we eventually wind up without corporations being able to spend in politics, it is not going to be because we go back to a Buckley Vivaleo framework from the 1970s. It's going to be because we have actually a new theory of campaign finance reform and a new approach approach and a new legislative effort. And so the question that I pose to Democrats right now on all of those issues, abortion rights, on civil rights, on voting rights, on campaign finance, on, you know, law and order, you know, the Department of Justice, like, we're not going back to a Merrick Garland. There will never be another Merrick Garland.
Nicole
Right.
Mark Elias
Then you know, so like, what is the forward looking agenda there, that of what we want to replace what Donald Trump has done?
Nicole
What share of the culpability do you place on Merrick Garland's dated view of the country and our politics for where we are right now?
Mark Elias
Yeah. So, you know, I have both waded into and not waded into this. So let me tell you the part I don't wade into. I don't wade into the like, should he have done this earlier or that later? Like, there's a lot of that and honestly I've listened to both sides and they get very in the weeds and.
Nicole
But in terms of like how he saw the country.
Mark Elias
Yeah, that is where I have weighed in and I do think it did not serve the interests of democracy. I don't think it served the interest of the Biden administration. And I've written about his farewell address. Like in his farewell address he literally says the most important thing are norms. And I'm thinking, okay, no, that is definitely not the most important thing. And this is actually a symptom of what has been wrong for the last four years. And so I was critical of him at the time, I'm critical of him now because the elevation of norms above the substantive impact that it has on democracy is a mistake.
Nicole
I just wanted you to say more about Democrats adherence to this because it ties back to what you said about nostalgia. Anytime I hear someone talking about norms, I don't ever want em back on my show. It's like 1990s calling and it wants its like bullshit political debates back. You know who got rid of norms? Voters when they elected Trump. Twice voters said the norms was the norm so that you can all go hang out together after voting against each other's legislation. The norms felt clubby and schmoozy and gross to the American people. And they voted out the norms when they elected Trump the first time. We were like eight years post. Norm political moment.
Mark Elias
Absolutely right. And I know that this is not how others interpret the California ballot initiative differently than I do. Voters didn't care about norms. You know, like I, I mean I understand like avenuesom is explaining it through a much more rosy lens of like direct democracy. And this is only for the time being and it'll revert back to a commission. Like I don't think voters cared about any of that. Voters wanted to stop authoritarianism and fight fire with fire.
Nicole
I think they responded to fire. Yeah, the fight.
Mark Elias
Yeah, yeah. And, and so I do worry. The thing I worry is that we will think that I had Actually a very smart, very smart, very experienced political consultant, Democratic political consultant who I've known forever, who said the next Democratic presidential campaign should be run on restoring the norms that existed before Donald Trump. And they said, look, that's what happened after Richard Nixon. I said, look, that isn't what happened. Congress didn't revert to Richard. I mean, the norms in Richard Nixon were you break into office buildings. They advanced the ball. FOIA was a major intrusion on the executive branch. The Presidential Record act was a major intrusion on the executive branch. They didn't. It was not nostalgia. It advanced in a particular way which was very good government oriented, but it advanced. But the idea that we would campaign on this, on this notion that we will go back to independent agencies, a Department of justice where the attorney general never speaks to the president and nonpartisan redistricting just strikes to me as crazy.
Nicole
My conversation with Mark Elias continues right after the Rake. Back in one minute. Score Holiday gifts. Everyone wants for way less at your Nordstrom Rack store. Save on Ugg, Nike, Rag and Bone, Vince Frame, Kurt Geiger, London and more.
Mark Elias
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Nicole
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Nicole
Yeah, I mean, I actually think that the next winning message, whether it's a Democrat or an anti Trump Republican, is going to be about the people. It's going to be about. It's going to be some version of populism. It's going to be about putting, I think term limits has to be part of the conversation. I think building a wall and abandoning and outlawing internal enforcement, which everybody hate. I mean, I mean like and having a humane asylum process. I mean, there are ideas that Trump has abandoned on immigration that are popular among a vast majority of Americans. And he's destroyed, as you said, the administrative state. It's not about rebuilding things. He destroyed because the reason I think people didn't take to the streets when USAID was demolished, gutting anyone, that anyone working in politics, knowing that those were programs that helped the world's most vulnerable, is that people feel so detached from the government, they didn't know what they did. And so it's going to be something that people help shape or feel like they have a hand in or feel like they can control. And I agree with you. This idea of restoring norms, like, maybe if he'd only served once, but Trump will have been there twice over a period of 12 years. There will be a whole generation of people that don't even remember what the norms were. One of the norms, though, was about not prosecuting your political enemies. And you came on my show the day that Trump name checked you at the Department of Justice.
Donald Trump
They spied on my campaign, launched one hoax and disinformation operation after another, broke the law on a colossal scale, persecuted my family, staff and supporters, raided my home, Mar a Lago, and did everything within their power to prevent me from becoming the President of the United States with the help of radicals like Mark Elias, Mark Pomerantz. And these are people that nobody's ever seen anything like it. So many others. But these are people that are bad people, really bad people.
Nicole
As Trump seems to tick through his perceived enemies list, Comey, James Bolton working on Schiff. Are you growing more or less anxious or scared that he'll get to you?
Mark Elias
I think the same level anxiety, it's a constant hum in the background that he has a list. We now know from Susie Wilde that we didn't get just 90 days. Someday you'll have to tell me what the hell happens at a communications office at a White House that allowed that to take place.
Nicole
I mean, all we did was the pictures by Annie Leibowitz, right? I mean, we did the Vanity Fair thing, but all we did was. Do you remember the pictures? Cheney and Rumsfeld and Pop Powell and Condi Rice took a picture like nobody talked to anybody for 11 times. I've never heard of that before. Even Woodward, I don't think, got 11 visits. It's crazy.
Mark Elias
Yeah, but it's constantly there, and I worry about it. I worry about it for myself. I worry about it for other people. But you can't let it paralyze you, you have to move forward. But honestly, when it flares up, and I'll go back to that moment of the James Comey Day, like, part of why you asked me, like, why did I say that People at the Department of Justice need to think about resigning. And it's because if you work at the Eastern District of Virginia under Lindsey Halligan, then, you know, some of your other guests may say you're a career prosecutor. I just say you work for Lindsey Halligan. Like, I don't even know what you means. You're a career prosecutor. Like, what do I care how long you've been there?
Nicole
Or do you work for Donald Trump? I mean, I think that what we learned in the subsequent reporting after that day is that Pam Bondi and Todd Blanche weren't in the chain of command, that she was reporting straight to the White House. So you don't even work for Lindsey Halligan, Pam Bondi, or Todd Blanche. You're working for the White House.
Mark Elias
That's exactly right. And so to me, the reason why I have said now, and I've said it increasingly more assertively at this point, if you work at the Department of Justice, particularly if you work in a U.S. attorney's office or the Criminal division, but even in doing immigration or some of the other cases, like, you are not preventing the worst of the worst. Okay. Like, if you thought you stay because you would be part of the guardrails, have no fear, you're not part of the guardrails.
Nicole
You can go.
Mark Elias
Yeah, right. If you needed time to find another job, you've had time to find another job. Like, at this point, you are just effectuating the policies of Donald Trump. And history will remember people who effectuated the policies of Donald Trump without any of the reference to the other stuff.
Nicole
Cause there's no other stuff. Okay. We have to deal with the capitulators, because I think this is a real moment where someone is going to have to go back and explain to me why Brad Karp takes Paul Weiss and literally goes down to Washington inside the Oval Office and capitulates to Donald Trump a decision that's so important because of all the firms that follow him is working for the Commerce Department, based on news reports. You understood that when Trump was barreling through in the shock and awe phase. But I don't understand it now that Democrats and Republicans have asked questions about whether the Trump administration is actively committing war crimes. I don't understand it after the. The rebuke from the entire country, from California to New Jersey to Virginia in the off year elections. I don't understand it. With the law firms that fought his bullying efforts batting a thousand in front of federal judges, what is the end game for the firms and universities and businesses that have capitulated and continue to do so?
Mark Elias
So I'm going to urge you to stop using the word capitulation, start using the word collaboration, and then I'll answer your question.
Nicole
Okay.
Mark Elias
I think we are viewing Brad Karp and Paul Weiss as a victim. I think we are viewing the universities as victims. And let's be clear, they started that way like some of them started that way. I mean, actually, not even all the law firms started that way. Some of the law firms were never targeted. They just went straight to the collaboration phase. But, you know, at some point, my sympathy for you as a victim wanes when you decide that it's actually a business model model. Like, it's not that. It's not that Paul Weiss is resisting this terrible thing and capitulating to the extent necessary, it is actually monetizing this relationship. It is monetizing all these law firms. They are monetizing the fact that they are now on the good list. And that's the reason why I have such contempt for Weiss. And it's why I did, frankly, from the get go. Because it was very clear to me that Paul Weiss was not saying we need to do this thing because everybody else will and we don't want to be the only one who didn't. What they were saying is we need to do this thing so that we too can market to our clients this thing which is being on the inside with Donald Trump. And maybe it didn't start that way, but he has been happy to build a business around that. And that is, by the way, true about a lot of the tech companies. You know, they are in business with Trump.
Nicole
Why though? Why? I mean, this will end. I mean, you don't have to be a campaign hand to know that however much you love the political moment or hate the political moment, it ends. It always ends.
Mark Elias
That's the real question is why do they think that this is in their long term interest? I mean, I think if you're Paramount, you wanted to buy Warner Brothers. If you are Jeff Bezos, you want to get government contracts to shoot off rockets and you want Amazon presumably to have whatever negotiations with the postal service. Right. Like you could explain all of them in the moment. You can't explain any of them in the longer term. And in particular for those that are consumer facing companies, whether they are entertainment companies or they're media companies or they're shopping e commerce companies. It's a really weird decision because, like, I'm not a marketing genius to know who the customers are that spend the most money on a lot of these products and who, like, watches a lot of these shows and goes to these movies. And so it's a very odd decision, but I assume that they are just playing the shortcut game.
Nicole
Do you feel differently about the trajectory we're on after the November elections?
Mark Elias
I do. And it's so smart what you said about Bannon, because I am. The other Steve Bannon's going to pull this tape and love it. I am the other Steve Bannon listener. I don't listen to his show daily, but I track.
Nicole
No, I'm a student of where he's tracking.
Mark Elias
Yeah. It is so clear that Donald Trump has lost. I don't want to say he's lost his base, because that's not true, but he has lost. He's lost the thread. You know what I mean?
Nicole
He's lost the tautness. Right. Like. Like the power was not just his coalition liked him, it was the tightness with which they tracked with him every tweet. But I think he's lost all that tautness in the Bond.
Mark Elias
Yeah. And so I think that that is, if you want to understand, like, you can explain New York, New Jersey, Virginia by saying, okay, it's just higher turnout among Democratic cohorts and the mega base doesn't turn out when Donald Trump's on the ballot. You really can't explain the closeness of the Tennessee House race or the Georgia election results or some of the others. This was, as you say, there is a dissatisfaction between the Republican MAGA supporters and what is going on. And, you know, like you said, I think Bannon is actually the one who gets it the most. And it surprises me that the people in the White House don't, because I'm glad.
Nicole
I mean, the only thing that makes me nervous about this conversation is I hope no one in the White House hears it, because I don't want them to bring Bannon in and start listening to him. I actually think it's too late. And I think their problems are structural. I think Joe Rogan may have gotten too close to this because he hasn't repeated it. But there were people in the MAGA coalition who thought mass deportations were a good idea. And then they saw them targeting people with jobs. That's why you go to the landscape, or that's why you go into the preschool. That's why you Go into the kitchens. I mean the whole promise has been an absolute reversal from what he campaigned on.
Mark Elias
Absolutely. And I also think, and I think this is J.D. vance's doing. There's a weirdness, like just an absolute weirdness. I know this was Tim Walls thing, but like there's just a weirdness to what's so weird of what this White House has become. I mean, it's just there's like now debates between like the Nick Fuentes and the Candace Owens and the.
Nicole
I can't even track it. There are people quitting like conservative think tanks over something Tucker did with Nick Fuentes. And I'm like, do I have to pay attention to this to cover politics? And I think I do.
Donald Trump
You do.
Mark Elias
Because like, honestly there's like a Vance part of this movement that I think the MAGA people who are like, look, I just wanted higher paying jobs, lower prices and like, you know, whatever else, like they, they think this is weird. And Bannon, for all of his craziness and like his worldview, which I don't agree with on anything, there is a more down to earth nature to his. Even, even when he's has the election deniers who, who are batshit crazy and he is batshit crazy. The JD Vance stuff just presents as weird and crazy.
Nicole
Yeah, it's not really appealing to anybody. I wanna ask you in our remaining moments, what fills you up? What do you look at when you wake up and what sort of inspires you to keep fighting?
Mark Elias
So I think that what inspires me to keep fighting is two things. The first is not particularly inspiring. It is just we have this existential threat. I have tools available to me to fight it and I'm going to fight it. I cannot overemphasize how much I was influenced in my young years by meeting so many Holocaust survivors. And these are folks who had been in the camps in their 20s and 30s and they survived because they had to survive. And I've told this story to people before. There was a guy who came in who was not a Holocaust survivor. He was a Nazi prisoner of war. He was an American citizen. He Jewish, 1819 from New York, went, you know, fought in the army, enlisted, got captured by the Nazis. He winds up in a POW camp and they separate the Jews from the non Jews. And he and the other Jewish prisoners of war are on a work detail dealing with agricultural products. And he told us that he and the other Jewish prisoners of war got this idea that they would go to the perimeter of the camp and get little pieces of barbed Wire. And when the produce would come in, they would poke holes in it so that it would rock. And I remember him saying particularly that the hardest ones were the potatoes, because potatoes are hard. And they would poke holes in the potatoes hoping that the produce would rot and then the Nazi war effort would starve. And so I always think about this image of this 18 year old who's literally a Jewish prisoner of war in a Nazi prison of war camp, who thinks that if he gets little pieces of barbed wire and repeatedly for eight hours a day, however long the work was, presses it with his bare fingers and thinking that by doing that, the Nazi troops will starve and therefore the Americans will win. I mean, I think about that like, if he can do that, I can poke holes in the potatoes. Like, you know, in my life, in the things I can do. So honestly, it's not really inspiration. It's not like, fills me up with warmth. It's just like I'm doing the thing I can do.
Nicole
Wow. But it's the whole thing. I mean, it's, you know, the model for defeating moments like this is that it's not that anyone, anyone comes in, in a cape. Right. It's that all of us do our part.
Mark Elias
Right.
Nicole
And it might not feel, might not feel impactful. And I mean, I feel like I'm spitting into the ocean most days, but the cumulative impact, Right. We've now been having these conversations for, I don't know, years. When the voters weigh in, I am heartened that they see what's happening and I don't feel crazy. I feel like they see what we see.
Mark Elias
Yeah. And look, when people say to me that they've seen me on your show and that we have given them hope or that they now understand the threats, I just feel like that's a win. You know what I mean? That's a victory. And I don't do a lot of television. People may think I do a lot of television because I do a lot of your show, but I really don't do that much other than your show, because I do it because it is poking holes in the potatoes. And that's what your show is about. Your show is about giving people the information to understand what's going on and what they can do. Like when you and I are on your show talking about these things, I do feel like we're in that effort.
Nicole
Me too. Me too. I'm so glad to be in. I mean, it's such a maybe pre Trump and unlikely alliance, but I do feel like we're allies in this fight and I'm so happy to be in it with you. And thank you for all your time today.
Mark Elias
Well, thanks for having me.
Nicole
Thank you so much for listening to the Best People. I want to wish everyone a fantastic holiday season and all the very best for 2026. We're going to step away for a little bit to spend time with family and friends, but we'll be back in January with all new amazing episodes. So please enjoy a few of our favorites in the coming weeks. And remember, all these episodes are also available on YouTube. You can visit Ms. Now. TheBestPeople to watch the Best People is produced by Vicky Vergelina. Our Associate producer is Rana Shahbazi with production support this week from Query Robinson. Our audio engineers are Bob Mallory and Greg Devens. The second Katie Lau is our Senior Manager for Audio production, Pat Berkey is the Senior Executive Producer of Deadline White House Brad Gold is the Executive Producer of Content Strategy, Aisha Turner is the Executive Producer of Audio and Madeline Herringer is Senior VP in charge of Audio, Digital and Long form. Search for the Best People wherever you get your podcasts and be sure to follow the series. Hey, Riley herbst here with 2311 racing, waiting for the bus, staring at traffic crawl hard pass I rev up Chumba Casino instead. Fast spins, blazing winds, all fun, no downloads needed. Why let the clock drag when you can let the reels spin? Next stop chumbacasino.com let's Chumba no purchase necessary.
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Episode: Marc Elias Urges Dems to Replace Nostalgia with Forward Progress
Date: December 22, 2025
Host: Nicolle Wallace
Guest: Marc Elias (Election Law Attorney and Democracy Advocate)
This episode features a candid, urgent conversation between Nicolle Wallace and Marc Elias in the fraught aftermath of Trump’s re-election. Elias, famed for his persistent, outspoken defenses of democracy in the wake of authoritarian advances, analyzes both immediate threats—like DOJ overreach, voter suppression, and the manipulation of electoral systems—and the broader need for Democrats to abandon backwards-looking nostalgia in favor of bold, new strategies. The episode’s tone is bracingly honest, at times bleak, but focused on pragmatic resistance, resilience, and the imperative to adapt.
[02:24] Elias explains why he processed and spoke about Trump’s second victory immediately, unlike others who took time to absorb the news.
[03:36] Why it’s vital to expose MAGA’s darkest impulses to the public, for the sake of mounting a durable opposition:
[04:39] Trump’s second term is defined by a two-stage authoritarian advance: resetting government control, then desensitizing the public to overt abuses.
[05:24] "There’s much too little outrage right now about what’s happening with people being dragged off the streets, citizens being handcuffed and interrogated...There’s a lot of interest in that, but not fundamental outrage." — Elias
[06:33] The pivotal test for 2026: whether elections can remain free and fair, as legal structures and societal norms erode.
[06:34] Elections will be “messy”—intentionally so.
[07:13] Multiple actors—Trump, inspired individuals, and foreign parties—are pressuring the electoral system, now against a backdrop of aggressive DOJ data collection.
[08:24–09:56] Elias sounds the alarm on DOJ lawsuits seeking full voter files, warning that the department is no longer a neutral actor, and career DOJ staffers are necessarily complicit.
[18:48] New statistic: Under Trump, DOJ has filed 21 lawsuits for full access to state voter files this year—a precursor to mass disenfranchisement.
[22:18] Nicolle presses: with all pretense of impartiality gone, "nothing protects the American people's personal data."
[17:00–18:20] Republicans manufacture fraud where none exists, and pass laws criminalizing routine voter behavior—targeting youth and mobility.
The DOJ’s data pursuits would give the Trump camp unprecedented targeting and disenfranchisement power.
[23:32] The Biden administration’s failure to prioritize voting rights legislation is seen as a pivotal misstep.
[25:28] Both host and guest stress the necessity of focusing forward, adapting campaign and legal tactics rather than longing for lost norms.
[26:20] Republicans’ structural discipline:
[28:25–29:39] Democrats’ lack of deeply integrated, forward-thinking structures; the need to replace “nostalgia” with a robust, future-facing program.
[29:39–31:34] The administrative state (the 'post-New Deal’ system) is likely gone; Democrats must propose new models, not promise a return to the pre-Trump status quo.
[32:10] Merrick Garland is criticized for prioritizing ‘norms’ over substantive democratic defense:
[47:49–49:50] Elias’s metaphor for the resistance: Like WWII prisoners sabotaging produce with barbed wire, every small act matters.
Both host and guest find deep meaning and resilience in continuing to inform, organize, and fight—no matter how daunting the odds.
With urgency and candor, Elias compels listeners: Democrats (and all pro-democracy forces) must abandon dreams of returning to pre-Trump norms. Instead, they must learn from their adversaries, design new frameworks for justice and voting rights, and “poke holes in the potatoes” wherever possible. Every action counts against the authoritarian tide—and future progress requires resolve, honesty, and forward-focused vision.
The episode is a must-listen for anyone seeking unvarnished, strategic insight into America’s evolving democracy crisis, and wisdom for the arduous road ahead.