Down & Dirty

by Jake Tapper

  “Five,” LePore says, meaning a Gore vote.

  “Five,” says Burton.

  “Five,” says LePore.

  “Five,” says Burton. They’re tearing through the ballots now, a GOP observer sitting between the two of them watching every ballot.

  “Five,” LePore says.

  “Over, five and six,” Burton says, meaning a vote for both Gore and Buchanan, which won’t count.

  “Five,” LePore says.

  “Five,” Burton says.

  “Three,” says LePore, meaning a Bush vote.

  They finish the batch. Six 3’s. Burton counts the 5’s for Gore. Bolton thinks that Burton messed up the count, so they ask Roberts to count them. She gets annoyed. “Come on, guys,” she snaps. “I want to get through this.”

  “Nobody’s trying to obstruct the process,” says Wallace.

  “Ninety number fives” is the final count for Gore in this batch.

  But that doesn’t mean 90 new votes for Gore—it just means 90 Gore votes that GOP observers categorized as questionable were now officially, firmly Gore.

  It might have been a net gain of 1 or 2 for Gore, or 1 or 2 for Bush, or nothing at all.

  General Baker is calling in the troops. The Gorebies are going to contest this election, and General Baker’s friend’s son needs the best trial lawyers around.

  There’s mistrust of Fred Bartlit, especially by Ginsberg, Terwilliger, and the political people. Quietly they snicker at him, his bluster, the way Judge Bubba Smith slapped him, how badly the overseas military-absentee-ballot case went, even though, in reality, there was very little case there to begin with. There are mean and cruel comments—the “Ted Baxter * of the legal profession,” one of the Bush lieutenants calls him.

  Bartlit, for his part, doesn’t care what these political lawyers think. He’s no kid, and he doesn’t have to genuflect before any of these guys.

  There are doubts about Phil Beck, too. No one knows him, no one trusts him, no one has any idea what to think. All they know is what they saw in Bartlit and that Beck and Bartlit are a team. Ginsberg and Terwilliger want some other trial lawyers brought in. Some people they can trust. The other side has Boies! They need some more firepower!

  Can’t you bring some folks in from Baker Botts? General Baker is asked.

  On November 25, Irv Terrell’s at his beach house in Galveston with friends, when he checks his office voice mail. There are a couple messages from Kirk Van Tine, a fellow Baker Botts partner. “Look, Baker really needs to talk to you,” Van Tine says when Terrell calls him back. “Call him back; you gotta come to Tallahassee.”

  He calls him back. Baker is somber. The legal situation has become paramount, he says. They have to win at court. “You could really make a difference for us, Irv,” Baker says.“I know you’re busy, but this has to be the most important thing, Irv.”

  Terrell is torn. Baker’s an icon around the office, around Houston, around Texas, and he wants to help him. And though Terrell leans left on some things, he grew up with George W., and voted for him happily—if with some concern about what his childhood friend might do to Roe v. Wade.

  That said, Terrell is worried about some other matters. He’s overworked already, for one. “How will I ever survive physically doing all this stuff?” he wonders. He’s also concerned about joining another high-profile suit; he didn’t like the ugly stuff he saw in his colleagues and even occasionally in himself during the Pennzoil v. Texaco case. If he joins up, he wants to conduct himself appropriately.

  “I’ll let you know tomorrow,” Terrell says.

  There’s a long pause. Baker’s silence conveys loads.

  “I’m calling Daryl, too,” Baker says, referring to Daryl Bristow, a fellow Baker Bottsian and one of Terrell’s close friends.

  Another pause.

  “Irv, you do need to come,” Baker says.

  A couple hours later, Terrell calls back. “OK, I’ll be there tomorrow morning,” he says.

  Bristow’s in Hattiesburg, Mississippi, for his wife, Janet’s, thirtieth high school reunion, and the Tallahassee fight is the farthest thing from his mind. Baker had called him on November 8 to join the team, and Bristow—a craggy, white-haired Texan—was excited to be part of the legal case of the century (especially considering how young the century is!). So he’d returned the call and left a message, and that was the end of that. Bristow just figured that Baker had eventually just decided against using him.

  Janet knows how disappointed her husband was, so when she calls home to check the phone messages back in Houston, she’s skeptical of what she hears.“I swear somebody’s playing a joke on you,” she tells him,“but there’s a message from Jim Baker, and it sure sounds authentic!”

  Bristow plays the message. “Daryl, this is Jim Baker. I’m in Tallahassee and would like to talk to you,” the recording says.

  Nope, that’s him.

  “Secretary Baker, to use an old phrase, I thought you’d never call!” Bristow says.

  “What do you mean?” Baker asks.“I did call. I was told that you were too busy.”

  The reverence for General Baker is truly a remarkable thing to behold.

  To a man, Team Bush praises him for his smarts, his cool, his legal mind, his political skills. When Bartlit and Beck came on board, they expected that Baker would be something of a figurehead. They’re surprised. To Bartlit, he’s “the CEO of the enterprise.” To Beck, Baker’s “the man,” making the key decisions, directing traffic, there seven days a week. Ginsberg knows how revered Baker is as a pol, but he’s stunned by his legal skills. To Ginsberg, there isn’t a legal document that Baker peruses that, after reviewing, he doesn’t make a suggestion to or observation of that isn’t important.

  On the other side of the border, Daley and Christopher have long since gone. But Ron Klain’s the one who has earned a degree of awe. He sleeps maybe two hours a night. His dedication is absolute. He seldom loses his temper, and when he does, the anger is at circumstances, never at a colleague or an underling’s screw-up, and it’s aimed at a door or a desk, never anywhere else. Klain—far more so than any of the advisers and consultants who told Gore what to do and who to be during the campaign—is utterly devoted to the cause.

  Whatever happens, to their respective teams, both Baker and Klain have earned respect in a way that the mere word could never convey. But Klain is no Jim Baker, even combined with the spiritual guidance of Whouley in Palm Beach. Whouley himself frets about this. They don’t have a Jim Baker, they don’t have a warrior, an Attila the Hun. They have Christopher, a diplomat, and Daley, who’s back in D.C. But, Whouley wonders, when you get down to it, who do the Democrats have, anyway? Bob Rubin? Maybe the Democrats just don’t have anyone like Baker.

  Broward County completes its work late Saturday—567 new net Gore votes.

  Lee says that he feels “confident, confident that there were many more votes that should have been counted,” that never would have been, had they not devoted the last ten days to the insanity. One ballot, for instance, on which was written: “I’m voting for George Bush.” “We were able to count it, where a computer couldn’t,” Lee says.

  A reporter asks Lee if he thinks that their political views may have played a role in how they looked at ballots. Lee tries to give an honest answer. It is not one that Republicans find reassuring. “Well, I don’t know that it was overt political bias,” Lee says,“but I think it’s just natural that, y’know, your own personal feelings and beliefs are going from time to time to shape how you perceive something.” Scherer and other Republicans do a double-take. Did he really just say that?!

  D day, Sunday, November 26, finally arrives.

  Now the world turns its weary eyes north to Palm Beach County, where it’s pretty clear that the canvassing board hasn’t a snowball’s chance in Hell of finishing up before 5 P.M. tonight. Was it their Thanksgiving break? Was it the day before that, when the Democrats hauled Burton into LaBarga’s court? Was it the Republic
ans’ effective dragging out of the process? Katherine Harris? Jeb? God?

  It’s been a long day for everyone, especially the members of the canvassing board. LePore is wearing the same white sweater that she had on Saturday. Carol Roberts is dressed in the same multicolored ensemble she was sporting yesterday as well. Burton apparently brought a change of clothes, because he has switched from the aqua golf shirt he once wore into a yellow oxford with a tie. The three of them have been here recounting the last batch of approximately 14,500 “questionable” ballots for more than thirty-one hours, but the question of the moment is: Will it be enough?

  Sunday morning, Terrell and Bristow hop on the corporate jet of one of the big Baker Botts clients, Reliant Energy, and land in Tallahassee by noon. They meet with Van Tine, who briefs them on all the lawsuits out there, in particular the contest.

  When Baker gets off a call, Terrell and he sit down and catch up.

  “Well, I’m here,” Terrell says. “Just trying to get my lay of the land.”

  “Well, look,” Baker says, “you need to talk to Ben Ginsberg.”

  “Fine,” Terrell says. “Who’s he?”

  Baker explains that Ginsberg, immediately below him in the hierarchy, is ultimately in charge of the Florida litigation, while Van Tine is making the trains run on time in terms of getting all the papers filed.

  Soon Terrell and Bristow meet with Ginsberg, who is clearly concerned about the contest the Gore lawyers are about to file. Ginsberg explains the concern about Bartlit—the Bubba Smith case didn’t go so well, the guy doesn’t take direction very well, and no one has any idea who this Beck guy is.

  But Terrell’s the wrong guy to bring this up with. “I recommended Fred to Baker in the beginning,” he says.“There’s not going to be a problem with Fred.” Terrell wants to make sure that everyone gets along, that there are no egos or turf wars or any of the hideous side of man that he saw in the Pennzoil case. This, he believes, is one of his primary functions. “I want to make the teams work,” Terrell tells Ginsberg.

  Ginsberg smiles.

  Bartlit and Beck have asked for a separate place to work, so they’re not even in the Bush Building; they’ve been given some office space at Gray, Harris & Robinson. Go over there and make sure everything’s going OK, Terrell is told.

  Terrell and Bristow arrive at Gray, Harris & Robinson and immediately ask for Bartlit, who welcomes them warmly. Terrell tells Bartlit that he was the one who recommended him. Beck remains pretty quiet, as if he’s trying to figure out who these two Texans are, what their role is going to be.

  They don’t know what will be in the Gore contest, Bartlit and Beck explain, but they’re focusing on Miami and Palm Beach, figuring those are safe bets. They’re trying to get their hands around what happened there; they haven’t yet met with any experts, but they’ve been talking to and meeting with various GOP observers from those counties, and they’ve accrued some raw facts, which they’re organizing and discussing.

  Bartlit gives Terrell and Bristow a brief presentation on the timelines in the two counties. He seems to really know what happened in Palm Beach; his grasp on Miami-Dade seems less firm.

  “Tell me about the dimples,” Terrell says to Beck.

  Beck launches into the theory he’s been working on about dimples, about the inherent bogusness of the Gore assault, that the only way Gore could win is if they convinced canvassing boards in Democratic counties to count marks as votes.

  Terrell is floored. For someone who didn’t have any idea what a “contest” was when Bartlit called him on Thanksgiving to bring him down to Florida, Beck knows his shit. The all-nighters he’s been pulling since he arrived on Friday are paying off.

  Forget Ginsberg’s warning: Terrell and Bristow like what they see. Bartlit’s a hardass, but he seems to be a good guy, just like Terrell remembers him. And Beck’s one sharp, fucking cookie.

  So Terrell goes back to Baker and Ginsberg with nothing but enthusiasm.“This is going to be great,” he says.“This is going to be a real trial! I feel good about it.”

  But Baker and Ginsberg remain worried. Boies took down Microsoft, for Godsakes.

  “I can beat Boies,” Terrell says. He did so before in Pennzoil. “I can. I can beat David. You guys need to understand that he’s mortal. He’s like lightning in a bottle, and it’s very important to keep him in the bottle.”

  Okay, Baker and Ginsberg say. How are the responsibilities being divided over there? “Who’s going to do what?” he’s asked.

  “We don’t know yet,” Terrell says. “But have you met Phil Beck?”

  From: georgewbush.com

  Sent: Sunday, November 26, 2000 1:03 PM

  Subject: Sunday surrogates In Palm Beach:

  Frist

  Gilmore

  Hunter

  Asa Hutchinson

  Lugar (coming to Tallahassee in afternoon)

  Kingston

  Pataki

  Portman

  Racicot (coming to Tallahassee in afternoon)

  Democrats in Palm Beach

  Markey, Deutsch, Sharpton, Rep. Sherrod Brown (former OH Sec. of State)

  In Florida:

  Senator Dole

  Lynn Martin

  In West Palm Beach at 1 P.M., the raison d’être of Burton’s fancy shirt and tie is made clearer when he strides before the assemblage of cameras and announces that the canvassing board is faxing Harris a request for a deadline extension from 5 P.M. Sunday to 9 A.M. Monday. After all, Burton’s letter states, the task of reviewing each of the ballots has “creat(ed) an extraordinary and unprecedented challenge for the canvassing board.”

  “We know you are interested in counting all votes as accurately as possible,” Burton’s letter reads, noting that he and his colleagues are “committed to reviewing each and every one of these ‘questionable’ ballots as quickly as humanly possible, including working through this evening.

  “We do not believe this extension would prejudice the State in any way, in light of the Florida Supreme Court’s opinion,” Burton continues, referring to the court’s judgment that the Monday-morning deadline could stand if Harris didn’t want to open her office on Sunday.

  After sending the letter asking for the extension, at about 4 P.M.,Burton calls Clay Roberts to plead his case.“We’re getting ready to send you a letter right now,” Roberts tells him. “What’s it say?” Burton asks. “We’re not giving you an extension,” Roberts says.

  Burton asks for mercy. “You know, we’re about two hours away from this, maybe an hour away,” Burton says. “People have been busting their asses here for twenty hours a day. Please. Just two more hours.”

  “Hold on,” Roberts says. Burton hears him talking to someone in the background. Roberts eventually gets back on the line. “We’ll let you know,” he says.

  Five or ten minutes later, the fax comes from Harris’s office: NO SALE.

  According to the rejection letter, Harris claims she doesn’t have the legal discretion to allow such an extension “in accordance with the explicit terms of the decision of the Florida Supreme Court.” So, at 4:30 P.M., after two weeks of twenty-hour days, Burton announces that the hand recount will not be completed by the 5 P.M. deadline. The board only has 800 to 1,000 ballots left to hand-recount—out of a total of 461,988—but he says that such a task will take another two hours or so. Since they only have half an hour left, he calls it quits.

  “So the secretary of state has decided to shut us down with approximately two hours and a half left to go,” Burton says, a bitter edge to his voice. “Unfortunately, at this time we have no other choice but to shut down. The supervisor of elections”—LePore—“has to hurriedly gather all the paperwork and prepare all the returns we have. We certainly don’t want to get any in at 5:01.”

  Scarcely five minutes later, Burton comes back into the hearing room, here at the Palm Beach Emergency Operations Center, and in a symbol of the mercurial nature of this ever-evolving second-by-second story, says t
hat they’ll continue with the last few hours of work after the deadline passes.

  “We are going to send a report to the secretary of state as to the returns that we have,” Burton says.“And this board has decided that we are going to remain here and finish the recount. And we are going to send whatever figures we have to the secretary of state, and it will be up to her whether or not she decides to accept those.”

  Tucker Eskew tells them that they should just all pack it in, but Bolton and Wallace decide to stay. Wallace notes the board’s hard work, objects to its self-extension of the deadline, and graciously says that his team will remain to observe for the rest of the process.

  Before he recommences with the hand recount of the remaining 1,000 or so disputed Palm Beach County ballots—knowing full well that Harris may not accept late updates to the already updated vote tallies—Burton approaches the media to offer us his thoughts.

  How many new votes are there? What will the new numbers that they’ve faxed to Harris—the totals from the first machine recount plus the new ones absent approximately fifty precincts—reveal?

  “Maybe a couple hundred votes,” he says.

  For Gore?

  He nods.

  Why are they continuing the counting, despite the fact that Harris has made it crystal clear that she won’t accept these new numbers?

  “Why not?” he says, casually. “We all want to finish the job.”

  Does he blame the fact that this has taken longer than he thought it might on the GOP lawyers objecting?

  “We agree, we disagree, we agree to disagree,” he says. “Both sides were extremely cooperative.” He says that spending Wednesday in LaBarga’s courtroom was time wasted, especially considering the fact that LaBarga ultimately gave the board no guidance on which chad were kosher. “We spent all day in court, when we could’ve been working,” he says.

  A reporter asks him a leading question about Harris, trying to get him to slam her.