Down & Dirty

by Jake Tapper

  * In March 1991, Al Hogan was defeated by just 3 votes in his race for Oakland Park city council against Douglas Johnson. A computer recount increased Johnson’s margin of victory to 5 votes. Hogan wanted a hand recount, since there were undervotes not read, but the Broward County canvassing board denied his request. He sued the board in circuit court and won, but in November 1992, the Fourth District Court of Appeals ruled that the canvassing board had the right to deny his request.

  † At the time, of course, it was not 2001. It was November 14, 2000.

  * The one being vacated by then–state senator Ileana Ros-Lehtinen, who was running for U.S. House. More on this race in a bit.

  * Big mistake. Lake County—where Bush beat Gore 50,010 to 36,571—reported 3,114 overvotes. In December, the Orlando Sun-Sentinel will review them and clearly identify 376 Gore votes—ballots where the oval had been filled in for Gore, and either Gore or Lieberman’s name had been filled in under the “write-in” section. Likewise, the newspaper finds 246 similarly botched Bush votes. This is a net gain of 131 Gore votes.

  The machine rejected these ballots, but a thorough canvassing-board review likely wouldn’t have.

  “To publish illegal votes as legal votes would be to mislead the readers and the public,” the inimitable Eskew told the Sun-Sentinel. “These are illegal votes, and your paper is publishing them as legal votes.” He calls the media investigation “mischief.”

  * In fact, the Democrats’ communications shop is so harried, Mark Herron himself won’t even know about the Smith press conference until I tell him about it during an interview in January 2001.

  * The only reason I don’t tell you Strep Throat’s name is that I made a solemn promise that I wouldn’t ever do so, and I, at least, consider my credibility to be a valuable asset. Unlike Mr. Throat.

  * I do so now, only after the presidential dispute is all over, and because I think Strep Throat—and whoever else on Team Gore knew about it—should be ashamed. I realize that even mentioning it circulates it even further, and for that reason I had second, third, fourth thoughts about including it here. But when all is said and done, I do it because I think Democrats need to be slapped out of their delusion that their advocates acted honorably. Strep Throat was not a fringe player on the Gore campaign. Strep Throat was a senior adviser who dealt with the vice president on a regular basis.

  * In a perfect example of how the shoddiness of the media benefited the Bushies, this “some real games are being played” anecdote will be reported by the Associated Press without the explanation that the Republican woman was complaining about Republican games. Then the story will be e-mailed out by Bush communications senior staffers Ari Fleischer and Dan Bartlett on November 18 at 5 P.M., with the subject line “GAMES BEING PLAYED” as an example of Democratic dirty tricks.

  * Not all of Latimer’s work is on behalf of aggrieved African-Americans, of course. In 1984, he represented the city of Miami in a suit brought by a twenty-year-old black man shot and killed by a Hispanic city cop. In 1991, he represented Miami again when former police chief Perry Anderson, an African-American, sued the city for not paying legal fees for his private attorney when he was named in lawsuits against the police department in various police brutality cases. In the past, the city had paid for counsel to represent white police chiefs.

  * The ugly 1876 dispute between Democrat Samuel Tilden and Republican Rutherford B. Hayes began when Florida submitted two slates of electors, one for Hayes from the GOP state canvassing board and one for Tilden from the Democratic state legislature. Congress formed an Electoral Commission, made up of five congressmen, five senators, and five U.S. Supreme Court justices. On a vote completely split on partisan lines—giving 185 electoral votes to Hayes, the popular-vote loser, and 184 to Tilden—Hayes’s one-term presidency was born. To prevent this from ever happening again, on February 3, 1887, Congress passed the Electoral Count Act, which established a number of laws kicking it all back to the states, hopefully forever.

  † “A clever court could have figured out a way to do this,” Carvin will say to me on January 16, 2001, with a devilish grin. “But they were not particularly clever.” He goes on: “The kind of cases I do—civil rights cases, affirmative action cases—I see the judges, I basically know the result, I mean a lot of times. If I’m arguing Prop. 209, and there are three Carter appointees, I basically know how they’re going to come out, and vice versa if it’s three Reagan appointees.”

  California’s Prop. 209, which bans consideration of race or gender in state school admissions or in state hiring, was adopted by public initiative in 1996. Carvin argued in favor of it all the way to the SCOTUS, and the Court refused to hear arguments on the matter in November 1997, one of Carvin’s many victories against affirmative action and civil rights measures. In October 1998, for instance, he worked to erase a 1993 Cincinnati city-charter law prohibiting discrimination in housing and employment based on sexual orientation.

  “I’ve been in a lot of courts where I sort of know that I’m just here for stopover purposes. Then all you’re trying to do is get through, lay down your markers, and move on.”

  * The Pullen decision will be a side issue from here on in, with the Republicans using it to attempt to paint Boies as a liar, so it’s probably worth going into here.

  In the March 1990 Republican primary in Illinois, a conservative state representative, Penny Pullen, lost to pro-choice paralegal Rosemary Mulligan. After a recount, the two were tied, and a coin toss gave it to Mulligan again. Pullen appealed to the state supreme court, which in September told Cook County Circuit Court judge Francis Barth to examine 27 undervotes and assess if there were any votes that “can be reasonably ascertained.”

  Barth judged that 19 ballots had no clear intent. He accepted 4 with pinholes in the chad, one dimpled chad on a ballot with a pattern of misaligned punches, and three hanging chad. Of these 8 accepted questionables, 7 were for Pullen and 1 was for Mulligan. Thus, Pullen was declared the winner, 7,392 votes to 7,386.

  Two years later, Mulligan ran against Pullen again. This time she beat her.

  * Live by the media, die by the media. Boies should know better than to trust everything he reads in the paper; this Chicago Tribune article will prove to be wrong. Dimpled ballots were not all considered votes in the Pullen case. The Chicago Tribune will prove to be an irritant to the Gorebies, which we’ll get to in a bit.

  * The U.S. Chamber of Commerce had been running ads against state supreme court candidates and not disclosing who was funding the ads, using the preposterous campaign-finance loophole that rules that such ads aren’t expressly political ads if they don’t use specific advocacy words, like “vote for” and “vote against.” A judge ordered the ads pulled.

  * The petition is signed, in order, by Rachel A. La Corte, Associated Press; Ellis Berger of the Sun-Sentinel, Paul Lomartire and Lou Salome of the Palm Beach Post, Dana Canedy of the New York Times, Daniel McGrory of the Times of London, Bill Redeker of ABC News, Don Finefrock of the Miami Herald, Sue Anne Pressley of the Washington Post, Henry Goldman of Bloomberg News, Dahleen Glanton of the Chicago Tribune, and Jane Sutton of Reuters.

  * How both Bush and George Washington University Hospital deceives the public about Cheney’s fourth heart attack is remarkable for no other reason than the Bushies’ ability to drag a normally respected physician into their MO of prevarication. Cheney’s heart attack would not have been ruled as such a year prior, before the American Heart Association changed its classifications, but still, Dr. Alan Wasserman, president of the George Washington Medical Faculty Associates, assuredly knew what he was saying when right off the bat he said that neither Cheney’s “initial EKG nor his blood work indicated that he had a heart attack.” (Emphasis added.) Of course, it was Cheney’s subsequent EKG and blood work that indicated that he had a heart attack, which Wasserman clearly knew at the time, since at that very same press conference, he referred to the fact that “a second EKG showed minor changes”—“mino
r changes” as in a heart attack.

  Bush, too, made this same deceptive assertion about Cheney’s condition when he used the very same weasel language to assert that “the initial EKG showed that he had no heart attack.” And, as always, despite the blatant disdain for the American people that Bush and his lie—and Wasserman and his lie—would indicate, the issue was dropped soon enough, and media outrage was minimal.

  † The U.S. Congress once concluded about the Civil Rights Act of 1968 that there was “no question of the constitutional power of Congress to punish private interference with voting in Federal elections, interstate travel or interstate commerce.”

  * The idea that a band of agitated white Republicans is simply incapable of intimidation is intriguing, especially when one pokes the thesis beneath its surface—imagining, for example, the exact same protest, with the exact same vigor, as carried out by, say, young Democratic African-Americans, and the subsequent reaction by, say, Brit Hume.

  * Gorebies will be further infuriated with Fabiani and Lehane after the recount fight ends and the Washington Post writes a rather flattering profile of the two, despite the fact that the Gore campaign’s communications weren’t quite the gold standard of media strategies, especially during the recount. Though, to be fair, Bob Shrum, Carter Eskew, and Daley were of course the ultimate arbiters of everything that went out.

  * Informally called a “cert” or a “cert petition,” a petition for a writ of certiorari (from the Latin for “to be informed of”) is what lawyers write when they want a higher court to reexamine any actions of a lower court. The writ itself comes when the court agrees to hear the appeal.

  * Article II, Section 1, clause 2 of the Constitution provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

  The 14th Amendment to the Constitution says that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  The 1st Amendment to the Constitution says that “Congress shall make no law… abridging the… right of the people to petition the Government for a redress of grievances.”

  * At least one Tribune editor will attempt to distance himself from the November 21 story by calling Mihalopoulos “a suburban metro reporter,” which is to a national reporter akin to calling someone a leper. Regarding the mistakes in the November 21 story, Greenburg will say,“This was a very rapidly developing story.”As for the role the Tribune played in the post-election drama, Greenburg argues that Mihalopoulos’s story was based on what Lavelle told him, and “Boies should have done his own research.” On the November 23 story, Greenburg insists that Remand Exhibit 19 was ruled a vote because of the pinhole of light, which is clearly not what a careful reading of the Barth testimony indicates.

  * Boies is technically a Democrat. He worked with the Clinton Justice Department to prosecute Microsoft, and his legal career was given a boost early on when he worked for Sen. Ted Kennedy as chief counsel and staff director of the Senate Antitrust Subcommittee and eventually chief counsel of the Judiciary Committee. That said, Boies has given cash to former Republican congressman Tom Campbell of California, a moderate and Stanford law professor, as well as to Sen. Orrin Hatch, Republican from Utah and chair of the Senate Judiciary Committee. “I knew him from judiciary,” Boies says. “I think he’s a good guy; very thoughtful and very pragmatic.”

  * In 1993, Terrell would again beat Boies while defending American Airlines in a predatory pricing antitrust suit brought by Continental Airlines and Northwest Airlines.

  * This last line is a reference to Sidney “Skip” Herman, a staunch Democrat Bartlit Beck partner driven crazy by Bartlit’s efforts.

  * Burkhardt is a hilarious example of how so many party hacks—both Democrats and Republicans—played small roles for their parties, and did them poorly, only to return back home with a swagger, as if back from Iwo Jima with a chest full of medals. A December 5, 2000, story about Burkhardt in the Springfield, Illinois, State Journal-Register, entitled “Springfield Lawyer Back from Florida Recount Duties,” features Burkhardt pathetically overinflating both his role and how well he did it.

  * Why don’t the Bushies feel more heat for their clear and unseemly trolling? I made a New Year’s resolution not to continue my grumpy rants on how soft the press was on Bush. But in addition to the general idea that the media, like any profession, consists of a lot of mediocrity, it’s also worth observing that the Gorebies brought this on themselves by aggressively going out and trying to disqualify absentee ballots.

  * “Ted Baxter” being the blowhard idiot news anchor played by Ted Knight on The Mary Tyler Moore Show in the 1970s. It’s a ridiculous insult; though he is somewhat blustery, Bartlit is regarded not only as one of the more successful trial attorneys in American history but as something of a visionary in that regard.

  * Note use of word “Democrats,” not “Gore,” in reference to Seminole.

  * Gore’s popular-vote margin of victory will eventually end up exceeding Bush by more than 537,000 votes. Of course, this is irrelevant to a presidential victory. Except to those with, er, evolving takes on the electoral vote.

  Like, say, NBC’s Jonathan Alter, who said before the election—when the conventional wisdom had Bush winning the popular vote and Gore the electoral vote: “As many Americans know, the person with the most votes doesn’t necessarily win. The election is decided by the electoral college.”

  By November 8, Alter was proclaiming, “If it turns out that Al Gore wins the popular vote nationally, there will be intense pressure in this country to have him become the president. Most people think the guy with the most votes wins.”

  * Heading up Gore’s transition efforts in D.C.

  * A written statement a witness presents to the record in a trial as to what he or she is going to say.

  * From the Old French for “to speak the truth,” voir dire is usually the term used during jury selection when lawyers try to figure out a prospective juror’s possible biases. But opposing counsel can also voir dire a witness, especially on the matter of the witness’s expertise, to see whether an expert witness has an interest in the case, which he or she, of course, is not supposed to have.

  * What goes unmentioned is that Leahy thought Lampkin’s whole purpose that day was to “get in his face and irritate him sufficiently to delay the process.”

  * In an interview in January 2001, I asked Richard why the motion for recusal had been made. “A number of people in the Bush campaign assumed that she would not be a good judge for us,” he said. “She’s black, a woman, a Democratic appointee—all traits of a likely Gore supporter. Also, days before, she’d been passed over for a promotion. So they wanted to get a different judge….My feeling was that she was independent and intelligent and would make the right decision based on the law. I didn’t think we had any basis for asking for a recusal, her not getting that promotion was not a legal ground. So I wasn’t going to sign it.”

  † Interestingly, Clark’s sister, Kristin Clark Taylor, was director of media relations for then-president George H. W. Bush.

  * Set aside, possibly to be completely nullified.

  * In the October 3, 1972, election for a seat on Florida’s Second District Court of Appeals, Edward Boardman beat Henry Esteva by 249 votes—a margin of victory rooted entirely in the 3,389 absentee ballots. Esteva, who received 404 more machine votes than his opponent, brought suit in the circuit court, alleging 1,450 irregularities in the absentee-ballot process. A trial judge found only 88 actual problems—13 with no voter signature, for instan
ce. He ruled for Boardman. The District Court of Appeals overturned this, ruling for Esteva. Then the Florida Supreme Court overturned the DCA, ruling once, and finally, for Boardman—a victory for the principle that courts should bend over backward to count votes, even in the face of clear screw-ups by elections bureaucrats or the voters themselves. In this instance, such a principle works for Bush, and against Gore.

  * I myself got this one totally, embarrassingly wrong, having written a piece for Salon.com called “Stick a fork in him, Gore’s done,” which outlined the myriad reasons the Florida Supreme Court was going to reject Gore’s appeal.

  * The New Republic, in its December 25 issue, will refer to this as the “secret brief,” to be revealed “when the identity of Deep Throat is revealed.” See the appendix for a full copy of the “secret brief.” And then call The New Republic and ask them who Deep Throat is.

  * Again, this is as much a Washington tradition as traffic on the Beltway. “Dole May Get to Advise Clinton Foreign Policy,” Washington Post headline, post-election 1996.

  * Tucker told reporters that Bush’s nominee for labor secretary, Linda Chavez, didn’t know that a woman who had stayed at her home was an illegal alien. Chavez herself told reporters that not only was that not true but that she had told that to Eskew.