Down & Dirty

by Jake Tapper

  So? Lee asks. “We have a supreme court decision of the state of Florida that trumps what the Illinois court says or what any of the other courts say,” he says.

  Madigan’s going a little bananas. “If we do our business based on a false affidavit, and you had a gentleman that came in here and provided you with a false affidavit—”

  “I need a deputy on standby to remove somebody who is out of order, please,” Lee says. “I’m not going to put up with this, sir. You have not been asked to speak. I told you, we are bound by the supreme court case, I’m not basing my decision here today on anything that someone says in an affidavit.” Madigan clams up.

  Having failed to use the Lavelle fiasco to change anything in Broward, the Bushies now try a new attack based on the fact that the Gore legal team waits until Monday, a full four days—until after Harris has certified the election on Sunday—before it presents the new affidavit to Palm Beach County. And what’s more, the Bushies say, Boies and Berger never gave the new affidavit to the folks in Broward. Berger responds to this by saying that he had been told that Lee didn’t want any more affidavits, that he found the whole Lavelle business irrelevant; he was focused on the ruling of the Florida Supreme Court. And while it’s true that LaBarga won’t receive the new affidavit until Monday, November 27, that’s because the courthouse was closed Thursday and Friday for Thanksgiving. As one senior Bush attorney will later confide to me,“That whole Lavelle thing was bullshit.”

  But Pullen will rear her head again.

  Their work in Miami-Dade completed, the Bush protest caravan drives north on I-95 to the Broward County courthouse in downtown Fort Lauderdale.

  When they’re not hand-holding and canoodling, Bush advance staffers Todd Beyer and Leslie Shockley drum up the crowd. Literally—Beyer actually beats a drum. Blakeman yells on his megaphone: “You’re not going to steal this election!” Meanwhile, Bush spokeswoman Lani Miller organizes protesters.

  Beneath hazy gray clouds that keep the street’s immense palm trees from casting a shadow, a crowd of four hundred or so Bush supporters chant, “Rotten to the Gore! Rotten to the Gore!” Other familiar faces from the campaign are scattered throughout, wearing orange baseball caps that read “W. Florida Recount Team.” “You’re a bunch of Dummy-crats!” one from their number shouts on a megaphone to the pathetically sparse crowd of pro-Gore protesters across the way, many of whom hold signs deriding “Bushit.”

  “You couldn’t even get a ballot right in Palm Beach!” the pro-Bush protester continues. “What a bunch of losers! I’ve never seen so many losers in one place!” The Bush crowd laughs. One protester holds a sign featuring Gore’s head in a noose next to the words “Gore: Hangin’ by a chad.” Another sign reads: “Hey, Gore, I hear Hell needs a president.”

  Every few minutes, the Republicans who continue to identify themselves only as “volunteers” exit the Windsor Monaco RV parked down the street and distribute T-shirts and baseball caps for free to the ravenous crowd.

  “How to STEAL an Election,” one popular shirt reads. “1. Count all votes. 2. Re-count all votes. 3. Re-count some votes. 4. Hand count some votes. 5. Change the rules. 6. Exclude the military.”

  Who’s paying for those shirts? I ask a man who refuses to tell me his name.

  “I’m just a volunteer,” he says.

  Yeah, but who’s paying for the shirts?

  “I dunno,” he says. “I’m just a volunteer.”

  This “volunteer” is actually Phil Muster, a Bush political staffer. But whatever.

  Different players in the saga have vastly different Thanksgivings.

  The Bush campaign makes sure that their operatives in southeast Florida have a memorable holiday, if not one with family. About two hundred of them gather in the Fort Lauderdale Hyatt, where Bush and Cheney thank them via speakerphone and entertainer Wayne Newton recites the Lord’s Prayer.

  Bush spokeswoman Mindy Tucker awakens that morning and drives around Tallahassee in an attempt to clear her mind. But before long she’s beckoned back to the Bush Building after the Gorebies file a brief with the Florida Supreme Court in order to force Miami-Dade to count. She goes back to work, putting out a statement, appearing on TV.

  At 4 P.M., she and around twenty others have reservations at Tallahassee’s Chez Pierre. On her way there, she receives a call on her cell phone; the Florida Supreme Court decided against the Gorebies.

  “Good,” she thinks. “Now at least I can have Thanksgiving dinner.”

  At Chez Pierre, Tucker’s standing at the bar, waiting for a glass of chardonnay when she receives another call. Ron Klain and David Boies are holding a conference call with reporters, she’s told. Gore is going ahead, preparing to contest the election. Does she have any comment?

  Aargh! she thinks. Don’t these people celebrate Thanksgiving? Do they not ascribe any meaning to this holiday? She phones up Ari Fleischer in Austin. “I’m livid,” she says. “Tell me if I’m wrong. Ron Klain says they’re going to contest this.” Tucker wants to take the evening off, so she’d prefer the response to be, “We have no formal comment; it’s Thanksgiving.” Is that OK with Fleischer? “I think it’s fine,” Fleischer says. “Do it.”

  She sees Klain on the bar’s TV, saying that Al Gore’s spending the day with his family.

  “Oh, my god! That’s bullshit!” Tucker says out loud, to no one in particular. “Al Gore is not ‘spending the day with his family’—they just did a conference call!” She starts yelling at the TV. “I cannot believe you just said that!” she says to Klain.“He is not spending the day with family. He was just on the phone with you!”

  A few Gore attorneys are at another table, laughing at her frustration.

  They send her a bottle of champagne.

  She feels obliged to walk over to them, to thank them. “How did you know champagne was my favorite?” she asks.

  “All beautiful women love champagne,” a Gore lawyer responds.

  Tucker is repulsed.

  The Palm Beach County canvassing board has taken the day off. On Wednesday, a county public-information officer told the board that “we can’t work tomorrow,” since they were having a tough time getting counters to agree to come in on Thanksgiving.

  “How are we doing?” Burton asked her.

  “Well, we’re picking up the pace,” the director of public affairs, Denise Cote, said.

  There was no discussion.

  “Great, let’s take the day off,” Burton said. “I could use it.”

  Perhaps no decision to have a Thanksgiving feast has had such national implications since, well, 1621.

  The Broward County canvassing board is surprised when they hear of Palm Beach’s decision. But they’re working through the holiday, no matter what.

  When they break in the afternoon to have Thanksgiving dinner, Lee, Gunzburger, and Rosenberg have unexpected guests at their Thanksgiving dinners: sheriff’s deputies.

  Gunzburger, in particular, has been receiving hate mail and threatening phone calls. She’s become the target of much ire on the Internet. Her son Ron, who writes for a political Web site, tells her that she’s been linked romantically with Commissioner Carol Roberts.

  But there’s other stuff, too. She’s been told that someone wrote on another site that she needed to be “taken out,” and she’s received forty-five thousand hateful e-mails. On one site her daughter and granddaughter’s names were listed. She feels incredibly vulnerable.

  One morning, while her attorney, Larry Davis, drives her to the canvassing board, she breaks down and cries. “You know, Larry, I’m doing this because I think I’m doing a public service,” she says. “I want to see my grandchildren grow up. I don’t want to die over this.”

  When Lee goes to feast at the home of his partner’s sister, sheriff’s deputies sit outside in their squad cars. Lee feels guilty, though, so he forces them to come inside for dessert.

  On Friday, someone throws a brick through a window of the Broward County Democratic H
Q with a note: “We will not tolerate any illegal government.”

  Baker, meanwhile, thinks that they need reinforcements. Whether or not the SCOTUS takes up their case, they need some trial lawyers on the ground in Florida. This thing’s clearly going to be contested in court, by one side or the other. And Baker here makes a tactical decision that contrasts sharply with the Gorebies’ team building.

  The Gore team, with the possible exception of Boies, * is made up of diehard Democratic, Gore-supporting lawyers. Mitch Berger, Ben Kuehne, Steve Zack, et al. Some of them are very talented, some of them less so, but they were selected because of their allegiance to the party and the vice president.

  Conversely, Baker starts seeking the best trial lawyers he can get. It doesn’t matter to him what party they belong to, whom they voted for.

  Early on in the process, for instance, Baker calls up Irv Terrell, a tall, bald, bespectacled Texan who’s a childhood friend of Bush’s and a colleague from Baker Botts, where Baker’s a partner. But Terrell is also something of a Democrat, a man who leans left on issues like abortion and race.

  Terrell can’t do it, he tells Baker, he’s just too busy. Plus, Terrell’s reluctant to jump into another high-profile case, having participated in the Pennzoil v. Texaco case.“Participated” isn’t even the word, really. The American Lawyer would refer to Terrell as Pennzoil’s “hit man” in the oil company’s successful 1985 $10 billion suit against Texaco for screwing them on a deal Pennzoil had made with Getty Oil. That was a case, interestingly, on which Terrell had worked with Tribe, and against Boies. * Such high-profile cases bring out the worst in people, Terrell thinks. On Pennzoil v. Texaco, Terrell saw one of his co-counsels, Joe Jamail, take credit away from co-counsel John Jeffords, a close friend of Terrell’s who subsequently died of a brain tumor. Terrell didn’t like what the media attention did to Jamail. He didn’t like what it did to him, either.

  Okay, then, Baker says, then who else? Baker asks Terrell for recommendations. Who else can be brought down to Tallahassee? Baker asks. Terrell recommends Daryl Bristow, another Baker Botts attorney, a Republican, though not an active party guy or anything. Another name that immediately comes to Terrell’s mind is Fred Bartlit.

  Bartlit—who you may recall was a young Kirkland & Ellis attorney in 1960 when the GOP hired him to investigate vote fraud in Texas—is at his daughter’s wedding at the Drake Hotel in Chicago when he first gets the call, on Saturday, November 18.

  It comes from Glen Summers, one of his associates from Denver; Bartlit splits his time between Illinois and Colorado. Summers says that the Bushies—he’s been contacted by an old chum, Ted Cruz, who’s on the ground in Tallahassee—want Bartlit to leave the wedding ASAP, to fly down to Florida, and argue for the inclusion of overseas military absentee ballots. Bartlit, sixty-eight, agrees to do it in the morning. A friend and client says that Bartlit can fly down early Sunday morning using his charter plane.

  A West Point grad and former army ranger, Bartlit’s a tough-talking guy who constantly derides what he sees as the overwhelming amount of bullshit in the world. Fed up with meetings and bureaucracy, he and a few of his buddies—namely Phil Beck, forty-nine—formed their own firm in 1993, Bartlit Beck Herman Palenchar & Scott, commonly known as Bartlit Beck.

  Bartlit and Beck are a pretty big deal, known in the legal community and among corporate America, if not household names with the rest of us. They defend big corporations, and they do so successfully. They’ve been real innovators in the use of technology and visuals and computers in the courtroom. They don’t bill by the hour—they get incentives if they win.

  And win big they do. In The National Law Journal’s list of the hundred most influential lawyers in 1997, Bartlit was described as “personally one of the most successful corporate defense litigators ever, with a long history of big wins.” These include victories for Amoco, Dun & Bradstreet, Monsanto, and United Technologies. He’s been there for DuPont on patents, National Lead on claims of paint-chip injuries to kids, GM on everything under the sun. He and Beck repped Alpha Therapeutic Corporation—a company that made blood-clotting medicine through which hemophiliacs were said to have contracted HIV.

  They’re big guns for the bad guys, as are most successful lawyers. Bartlit and Beck are just a bit more successful than most.

  Neither claim to be conservative Republicans, however. And if you ask Bartlit about his clients, he’ll immediately shift the conversation to his representation of the Sierra Club in 1981 in its suit against the utilities running the Four Corners, New Mexico, coal-fired power plant that discharged sulfur dioxide into the air. He’s about to take on the tobacco industry on behalf of the Canadian government. If you ask Beck, he’ll mention his representation of an African-American Chicagoan in his suit against the cops who wrongfully imprisoned him.

  As for their feelings on the presidency, well, both pulled the lever for Bush in November. Beck thinks that Gore’s “a creep,” that he has “an unhealthy obsession with wanting to be president; his whole life’s been defined as to whether he’ll achieve Mommy and Daddy’s dream.” But neither Bartlit nor Beck voted for Bush in the Illinois primary. They were among the 22 percent of Republican voters in that state who voted for Bush’s nemesis, McCain, despite the fact that the Arizona senator dropped out of the race two weeks before.

  Bartlit arrives in Tallahassee the morning of Sunday, November 19, and he gets to work on the overseas military absentee-ballot case. Over the course of the week, he calls Beck, tells him that it looks like there will be a contest filed, after which things are going to move very fast, around the clock, like the hostile takeover cases Bartlit and Beck have worked on before. For that, Bartlit says, the Bushies will need more than one trial lawyer.

  “I think it would be the kind of thing that would be perfect for you,” Bartlit says to his young partner. He has a fatherly pride for Beck, whose headstrong, occasionally idiosyncratic ways weren’t as beloved at Kirkland & Ellis as they are now. “If you want to come, I’ll recommend they bring you down,” Bartlit says.

  But by Thanksgiving Day, Beck hasn’t heard a word. Before he heads off to his sister’s house for dinner, he sends out the following e-mail:

  From: Beck, Philip

  Sent: Thursday, November 23, 2000 12:51 PM

  To: Bartlit, Fred; Summers, Glen

  CCL Herman, Sidney

  Subject: If you need me

  Since I haven’t heard from anyone, I assume we have not been put in charge of whatever contest occurs and/or that I’m not needed in Florida. If someone needs to talk to me this weekend, I will have my cell phone with me and turned on most of the time. Skip and I are proud of all of you for helping to elect our next President. *

  Beck assumes that the decision has been made, but he brings his cell phone, which he seldom does.

  It’s a mixed crowd at his sister’s—Beck’s mom and sister and one of his sons voted for Gore, while he, his wife, brother-in-law, and other son were Bush-backers. Everyone’s talking about the election, getting lawyer Phil’s take on it all. He hasn’t told them about the fact that he might even be called to come down.

  Soon enough, the phone rings, and Bartlit tells him that the Gore lawyers have just announced that a contest is going to be filed. Beck doesn’t quite know what that is, but he’s on the program, he tells his family—“they all instantly became Bush supporters,” he later says—and at the crack of dawn on Friday morning, Beck’s on his way down south.

  By going for the best lawyers he can find, period, and not just going after Bush loyalists, Baker makes a very shrewd decision. Though initially, when Bartlit is chosen to represent Bush in a suit against fourteen Florida counties for not counting certain overseas military absentee ballots, some of the Bush loyalists—Ginsberg and Terwilliger, primarily, as well as tons of political folks—have their doubts.

  Accompanied by Summers and Unger, Bartlit presents his case on Friday, November 24, before Judge Ralph “Bubba” Smith. Beck is in the s
tands, fresh off the plane in jeans.

  Bartlit knows that however strong the overseas military absentee-ballot case is politically, it has limited potential legally. There are, for example, serious questions about venue—whether they should be dragging fifteen counties to a Tallahassee courtroom instead of filing in fifteen different county seats throughout the state. There are also possible procedural problems on the matter of the law; the issue has never been resolved before. No one would say they had a great case. But, Bartlit and Baker Botts partner Kirk Van Tine had decided, something has to be done. The Democrats might have retreated from the Herron memo, but military votes still weren’t being included. The Bushies estimate that about 500 ballots were rejected for technicalities that they claim they can argue against, such as lacking a postmark. By using the confusion about whether an absentee ballot has to have a postmark—or if, lacking a postmark, since it’s sent from a ship or whatever, it’s enough that it’s signed and dated—the Bushies will try to shake out every single absentee ballot they can. Some Bush pols repeat arguments to reporters that they don’t intend on making in the courtroom: they want military ballots given every possible benefit of the doubt. They want ballots bearing postmarks that are unreadable to count. And, heck, not just the unreadable; they want post–Election Day postmarks to count!

  How much of this is rooted in the conference call on or around Veteran’s Day, November 11, is impossible to say. Who on the Bush team knows about that conference call? Also impossible to say. But the legal maneuvers in today’s courtroom will do a great deal to further the cause to get ballots that have been cast after Election Day—however many there are—counted.

  When Bartlit walks into the courtroom, he expects to see Gore lawyers there, to argue on his side that these ballots should be counted—the argument that, after all, Lieberman made on TV. But they’re not there, which Bartlit finds a bit sleazy. Nor are they there to argue the other side of the matter, which Bartlit finds disappointing, since he has a computer file full of graphics and Lieberman quotes arguing the Bushies’ side on this. Oh well, he thinks. That the Gore lawyers haven’t entered the case and aren’t helping out the canvassing boards will be good—it increases the likelihood that the canvassing boards will start caving.