Down & Dirty (109 page)

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.

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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 instance. 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.

^*
Incredibly, in its series about the Florida madness, the
Washington Post
allowed this line from Bush to stand unchallenged: “We survived the recounts. I didn’t mind a recount.”