Down & Dirty

by Jake Tapper

  The burden of proof is on Gore’s team, Richard says. “We are light-years from any carrying of that burden. There is no proof of any problems. There is nothing but two witnesses with speculation. There is no evidence.”

  He puts it to Sauls: Is Florida “prepared to tell the American people that it will disqualify its electors and possibly hinge the election of the presidency on the only two witnesses presented by the plaintiffs?”

  Under pressure to speed things up, the Gore team limited their case to two witnesses. Just as the Gorebies’ original decision to limit the hand recount to four counties, rather than all sixty-seven, was rooted in the pressure they felt to have the matter resolved quickly, the Bushies successfully spin the results of their opponents’ hypersensitivity to PR and the ticking clock as evidence of an inherent disingenuousness.

  In the midst of some of the riff-raff closing arguments—Klock’s, and some of the voters’ attorneys—there’s an off-the-record discussion about Shirley King, elections supervisor of Nassau County. Sauls says, “I salute Miss King as a great American.” That makes two great Americans in one trial. Not bad.

  Terwilliger steps up and makes a motion to dismiss.“The relief they have asked for is a partial recount of votes. And here they disagree in their papers without contention that a manual recount has to be all the votes, or that any recount has to be of all the votes.” Boies said that the Bushies needed to cite a case in order to push for a statewide recount. “We don’t need a case,” Terwilliger says. “The statute says it all. It is self-evident, and logic dictates that it be all the ballots that would be subject to a recount.”

  In fact, the Bushies are now convinced that the Gore legal team will never go for a statewide recount. They believe that the Gorebies think that they would lose a statewide recount—especially one with clearly defined standards—and so, even though the Bushies don’t want one, they shrewdly seize it as a PR and legal maneuver.

  As for their argument that the Miami-Dade canvassing board erred by not continuing their hand recount, though its members were convinced that they could never make the November 26 deadline, this is ridiculous, Terwilliger says. “Surely the irony is lost on no one, no less Your Honor, that the board is now being sued” for not abiding by a situation that the Gorebies, using the Florida Supreme Court, created, “for failure to meet a deadline that the Gore-Lieberman campaign asked for.”

  At 11:18 P.M., the case is closed. “I will give you a decision in the morning,” Sauls says.

  “I think Barry Richard’s a fine lawyer,” Boies says to a scrum of us. “I think he made the best case he could with the material he had to work with.” After recouping in a conference room in the circuit court judges’ chambers, Boies is handed a beer, which he guzzles in the elevator down to the parking garage.

  It seems to escape at least a few of those following this whole mess that it has now become a war between thieves. Perhaps it always was. Bush doesn’t want any recounting of ballots, and you don’t need to be a politics junkie to know what that means. If you’re confident you scored the touchdown, you’re not going to worry too much about the instant replay. But Gore, bar a few offers he knew would be rejected, hasn’t exactly wanted a replay, either. He’s only wanted to review a select chunk of Florida where statistically he should clean up. Yes, an argument could be made that limiting the recount to those few counties made lots of sense; it would be logistically much more feasible than a statewide recount, and it certainly was playing by the rules to choose the counties where they wanted a second look. Bush could have chosen some Republican counties if he’d wanted to, but of course he didn’t want any recounting anywhere.

  Was there any way Gore could have avoided getting to where he is right now, his top lawyer heading for his car, his case in tatters? Possibly not. Maybe in California or New York or Illinois. Maybe in Massachusetts or New Mexico or Oregon. But this is Jeb Bush’s backyard. This is Katherine Harris’s home. They pull the strings, they hold the cards, and they’re the ones folks like Sauls and Burton and Penelas are going to have to answer to once David Boies and Ron Klain have gone back home. But even if this is the Jeberglades, there was never—not once—a good-faith effort by the Gorebies to go statewide and find out who really won if the 175,000 unread ballots were examined. There were Republican officials—not a lot of them, but enough, like Nebraska senator Chuck Hagel—who had said that a statewide recount seemed the only reasonable solution; Gore could have taken cover by standing with him. But he didn’t, because his lawyers and his pols told him he didn’t have to, and that he might not win that way. So in enemy territory, Gore ceded the small amount of high ground he had. Between that and the fact that the Bush team has out-lawyered, out-intimidated, and out-maneuvered the Gore folks at just about every turn, it is hard not to be left with an inescapable conclusion. Al Gore may well have won more votes than George Bush here in the Sunshine State. But assuming the SCOTUS keeps to form, this is over.

  Boies should probably think about a second beer. At least.

  18

  Subject: gore clean up

  We in the media may not have been paying much attention to the Seminole County case up until now, but the Gore and Bush teams sure have been. And even before the case is tried, all sorts of odd machinations go down.

  After Thanksgiving weekend, Seminole County circuit court judge Debra Nelson is preparing to hear the suit, when her campaign manager reveals that Nelson’s campaign, too, had forgotten to put voter ID numbers on absentee-ballot applications, and thus it, too, had fixed about five thousand applications. The Republicans move that the case be shipped to Tallahassee to be consolidated with the Sauls case. They get one out of two: it moves to the capital but to the courtroom of circuit court judge Nikki Ann Clark.

  “I think this might be the sleeper case over here,” an intrigued Judge Terry Lewis says to Clark.“Everybody’s looking at the Sauls case over there, but we’ve got thousands of votes over here, and if they get thrown out, the election will go the other way.”

  Some of the Bush legal team chieftains are intrigued as well. Clark’s an African-American woman, an appointee of Governor Chiles. Sounds to them like a Gore voter. They want her recused.

  But Barry Richard disagrees. She’s very intelligent, very independent, she’s a good judge, he tells them. She’ll rule on the case on the merits, he says. Others on the Bush team aren’t so sure. Ginsberg, Terwilliger, and Baker learn that Clark was one of eight judges who’d been nominated in September to fill a vacancy on the Court of Appeals for the First District—and one of six whom Jeb Bush hadn’t selected. They decide to ask her to recuse herself. Her failure to get a promotion is entirely a secondary consideration. * But it gives the Bush team a barely legitimate-seeming excuse to ask for her disqualification.

  Barry Richard disagrees. This “promotion” thing is a ruse; the recusal motion is because she’s black, a woman, a Chiles appointee—and the reaction of his colleagues offends Richard. That she wasn’t promoted to the appellate court is nowhere near grounds for recusal, he says. And it could look bad, too. But the Bushies don’t care about the merits or how people will interpret their actions; all that matters is that there are 15,000 absentee ballots that Judge Clark could possibly throw out, and they have to stop her. †

  Though he’s signed almost every Leon County court motion that comes out of the Bush Building, Richard refuses to sign the recusal motion against Clark. A Tallahassee lawyer named Segundo Fernandez does so instead.

  On Wednesday, November 29, the Bush lawyers file the motion. After Clark denies it, the Bush lawyers on Thursday appeal the decision to the district court of appeals—using language that even Baker Botts attorney Daryl Bristow finds a bit harsh. The DCA also rejects the motion. And though there have been concerns expressed that both the motion and the appeal might garner them bad press, neither action merits much media coverage at all. Once again the Republicans are given a pass. So much for the “liberal media.”

  Clark
has been in highly charged situations before—assistant state attorney in Miami, assistant public defender in West Palm, appellate defenders’ office in Detroit, staff attorney with Legal Services of North Florida, aide to Chiles, assistant attorney general of Florida under Butterworth, director of legislation for the Florida Department of Environmental Regulation under Carol Browner. And that, in many ways, was the whole point. She wanted to be where the action was. Growing up in Detroit in the ’60s, she could see that the legal arena was the place to be if you wanted to make a difference. In her mid-teens, she’d cut class to watch civil rights lawyers like Elliot Hall making their cases. She didn’t know what those lawyers were even saying, but she knew that they were right, and that they were making a difference.

  Yes, she is exceptional: the first African-American to be named to the bench in the sixth circuit on any level and the only black female circuit court judge. But so what? And for that matter, how can anyone think that her social conscience means that she’ll just hand the election over to Gore regardless of the law? Or that her failure to get kicked up to the district court of appeals will foment such resentment against anyone named Bush that she won’t be able to preside? Most of the DCA judges have tried two, three, four times before they finally got promoted.

  But if the media gives the Bush strategy a free ride, it doesn’t always ignore Clark. Radio host Lowell Ponte calls Clark Gore’s “Great Black Hope,” “an arrogant African-American Democrat judge in Florida [who] may decide whether to throw out thousands of ballots cast mostly by whites, thereby tilting the statewide outcome and keeping her political party in the White House.” Ponte blasts her for “lack of judicial ethics by refusing to step aside in a case where she appears to have ideological as well as selfish and personal [motives].”

  At the same time, Clark is also aware that some African-Americans who don’t perceive the system as being fair are looking to her courtroom as a place where at least this case might get a fair hearing. Jesse Jackson himself sat to watch a pre-trial hearing, though Clark didn’t pay him much attention. Still, it is not inconsiderable pressure.

  “This could be a real sticky one,” Lewis, her colleague down the hall, says to himself, looking at some of the filings. “You clearly can’t condone this kind of stuff,” he thinks. “Clearly, you got stuff here that looks like at least they did something they weren’t supposed to do. Yet you’ve clearly got people who voted, and nobody says that the people who voted weren’t voters or that they did anything wrong.”

  He gets his chance to explore the same issues on Friday, December 1, when the saga of Martin County comes to his courtroom.

  In 1925, when Floridians just north of Palm Beach sought to have their area officially incorporated as a county, they had a clever idea: they proposed that the new county be named after the governor at the time, John Martin. The residents of Martin County have a long history of playing the angles with the folks in charge.

  Democratic electrician Ron Taylor had been outraged to hear that Martin County supervisor of elections Peggy Robbins let the treasurer of the Martin County Republican Party, Tom Hauck, remove several hundred Republican absentee-ballot applications from her office, do whatever the hell Hauck wanted to do to them, and then bring them back. Hauck had also been permitted by Robbins to camp in the elections office to fix any incomplete or mistaken applications. All in all, Robbins’s cooperation with the GOP brought 673 Republican votes back into the world. To Taylor, Robbins made even Seminole elections supervisor Sandra Goard look good.

  A full 9,773 absentee ballots were cast in the county, and Bush received 6,294 of them to Gore’s 3,479. Taylor wants all 9,773 ballots tossed, which would result in a net gain of 2,815 votes for Gore, and the presidency of the United States.

  It’s decided that Lewis and Clark will stagger their trials so that lawyers like Richard can run from courtroom to courtroom on Wednesday, December 6.

  When Daryl Bristow was taken off the Sauls case and put on Seminole, General Baker didn’t sugarcoat it.

  “Daryl,” Baker said, “I’ve got something I’m asking you to do where you’ve got no upside.” He told him about the case. “We oughta win,” Baker said, “but if we lose, it’s premier. And we gotta have someone with white hair to take the heat. Depositions start in Orlando tomorrow.”

  To Bristow, that seems like a year ago, though not even two weeks have passed. By now he’s met with the Seminole County canvassing board’s attorney, Terry Young, and with both the elections supervisor, Sandra Goard, and Michael Leach, the Republican operative who had camped out in her office for those fifteen days. Almost immediately Bristow realizes that he doesn’t want either one of them up on the stand. Goard is scared stiff; also, clearly, she played a little fast and loose with the law, and she showed her GOP hand a bit. Leach is a nice young man, Bristow thinks, but it would be easy for the Democrats to paint him as a partisan thug. Bristow decides that if he can, he’d rather enter an agreement with Democratic attorney Gerald Richman stipulating as to the facts, rather than parading Goard and Leach before the country. To his astonishment, Richman—who wants things to proceed as quickly as possible so as to meet the December 12 deadline—goes along with it.

  Richman agrees because he’s so convinced that the facts in the case are so indicative of a clear, egregious, corrupt abuse of power by Sandy Goard that he doesn’t even feel the need to cross-examine her or Leach in court. Perhaps he’s not seeing things clearly; he’s juiced up on eleven-year-old resentments. And he’s been itching to put it to the Bushies from Minute One. The day after the election, Richman had been working with Berger’s firm on filing a butterfly ballot suit. Richman was personally fired up about it all—he himself says that he almost voted for Buchanan because of that damn butterfly ballot. He hates Bush. And he thinks the Republicans play dirty. Correction: he knows the Republicans play dirty—firsthand.

  When the late great Rep. Claude Pepper died in May 1989 at the age of eighty-eight, Richman ran against then–state senator Ileana Ros-Lehtinen for his seat in an ugly, ugly race that political mudslinger Lee Atwater helped run out of the Bush White House.

  After Atwater said that electing a Cuban-American to the seat was his top priority, Richman replied, “This isn’t an Anglo seat. It isn’t a Jewish seat. It isn’t a Cuban-American seat. It’s an American seat. It belongs to all the people.”

  Atwater and Ros-Lehtinen took the second-to-last sentence in that graph—“This is an American seat”—and ran with it, making it seem as though Richman had been insinuating that Cuban-Americans aren’t Americans. “Tell Mr. Richman that we too are Americans,” read one RosLehtinen brochure.

  The day of the election, Radio Mambi and another Spanish-language station equated a vote for Richman with one for Fidel Castro. Richman lost with 47 percent of the vote. Ros-Lehtinen became the first Cuban-American elected to Congress.

  Since that race, Richman had been convinced that there wasn’t anything Republicans wouldn’t do to win. So he was only too happy to collect butterfly ballot affidavits on behalf of the Gore campaign. And when he received a phone call from Gore lawyer Joe Sandler on November 20—saying that “we have a major Democratic Party contributor who needs a good lawyer, we can’t get involved in it but your name has been suggested”—Richman was only too happy to help.

  The next morning he flew to Sanford, Florida, to meet with Harry Jacobs and a bunch of lawyers drafted by Jack Corrigan and other Gorebies trying to help Jacobs’s cause, even though Gore himself continues to have nothing to do with his lawsuit and knows nothing of his underlings’ actions.

  Richman thinks Goard and Leach violated the law, of course. But there is never any question about the fact that he and Jacobs are motivated primarily by a desire to disqualify Bush votes so Gore will win the presidency.

  The Gorebies are gun-shy, wimpy, Richman thinks, while the Bushies are hungrier, more willing to do anything they can to win. The Gore team’s worried about the inconsistency of trying to get vote
s counted here, and votes discounted there. They’d been burned on the overseas military absentee ballots and don’t want to get directly involved with Seminole.

  Richman and Jacobs didn’t think that way; they didn’t care. Like good Seminole warriors, they recognize that this is a guerilla war. And they want to win.

  On Saturday, December 2, Young deposes Jacobs. He establishes a few interesting facts: Jacobs had given $50,000 to the DNC, had financed a TV ad against Cheney’s professed ignorance of, and seeming indifference to, human rights abuses in Myanmar, with whom his oil-related business, Halliburton, knowingly got into bed. He also admits having spoken with both Berger and Sandler. The Bushies immediately leak this information to the media, so as to prove collusion with Gore.

  They should be so lucky, Richman and Jacobs probably think. They’re actually pissed off that the Gorebies aren’t helping their cause enough. Berger wants to help them, of course, but he’s rebuffed at every turn. In fact, Richman’s being helped by the Gorebies, though surreptitiously, with various Gorebies drumming up attorneys to volunteer to fly down to Florida to help out. Labor lawyers like Jack Dempsey, general counsel of the American Federation of State, County and Municipal Employees, and New York attorneys Eric Seiler, Katherine Pringle, Jonathan Abady, and John Cuti soon arrive in Tallahassee and help Richman any way they can. Paralegals provided by AFSCME root through absentee-ballot requests. But overall, the Gore team isn’t helping much at all.

  In fact, Richman might have had to pack it in already if not for a surprise sugar daddy. Infoseek founder Steve Kirsch had called him one Sunday, after being stranded when his US Air flight had been cancelled. “I want to help you,” Kirsch said. He’d sold Infoseek to Disney for $2.5 billion in stock options. So when he said, “What do you need?” he meant it. Richman soon had a chartered plane to Tallahassee; $150,000 in legal costs came soon after.