Ted Olson Interview 4

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ORAL HISTORY OF THEODORE B. OLSON, ESQ.
Fourth Interview
June 8, 2016
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Elizabeth Beske, and the
interviewee is Ted Olson. The interview took place at Gibson, Dunn & Crutcher on Wednesday,
June 8, 2016. This is the fourth interview.
MS. BESKE: I want to start you off, we’re chronologically in mid-1999-ish, we talked
quite a bit about your work for the American Spectator and things like that in
our last session. My understanding is that you were hired by Lewinsky
representatives to help negotiate with Ken Starr a relief from the immunity
agreement that she had signed with him in order to get an interview with
Barbara Walters.
MR. OLSON: I don’t recall that I was hired by the Lewinsky representatives.
MS. BESKE: ABC ultimately paid your legal bills, and there was a little hullaballoo in the
media at that point, it was probably 10 months later. I think that Lewinsky’s
representatives initially contacted you. There’s some ambiguity.
MR. OLSON: Here’s what I do remember now as you prompt me. Jake Stein, who was one
of her lawyers at that time, there was an impasse. I think it was publicly
known that there was an impasse between her and the network with respect
to this interview and whether the independent counsel or special prosecutor
would let her go forward with this interview in a manner that would be
consistent with her plea agreement or whatever was going on, and Jake Stein,
who is a famous lawyer in Washington, D.C., an absolutely spectacular
human being and a wonderful guy, contacted me, I think, and asked whether
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I could serve as sort of an intermediary. He knew that I knew Starr, and he
thought maybe I could resolve this impasse. I said well I’ll try if you people
don’t mind and Starr’s people don’t object. I don’t want to do anything that
nobody wants me to be involved in, but if I can help, I will.
MS. BESKE: Do you recall any of the interaction with Starr’s team?
MR. OLSON: Not too much. I recall contacting – I’m not 100% sure of this memory, but I
think I probably must have contacted them and said would it be okay. I think
the argument that I was making was for God’s sake, why do you want to look
bad imposing on Monica Lewinsky, she’s in the public eye now as kind of a
victim of big crushing forces on all sides, and it looks bad if you continue to
make objections to her doing this if this is something she wants to do and
blah, blah, blah. I’m not remembering the details very well, but as I sit here,
I think that I was stricken by the fact that there weren’t any good reasons. It
was just people had gotten crosswise with one another about this sort of
thing, and if they just thought about it a little bit, this was something that
would be easily resolved. And it turned out that it was. And somehow they
agreed – and I guess they had a couple conditions – that’s coming back to
me, but I’m not 100% sure.
MS. BESKE: Topical conditions?
MR. OLSON: Again, I’m trying to resurrect this. I think maybe there were certain things
about their case or their prosecution that they didn’t want discussed, or their
potential investigation, rather than prosecution, that they didn’t want
discussed. And that may have been a part of it. And that wasn’t, as I recall,
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that wasn’t objectionable to her or her lawyers, and I never dealt with her
directly during that period of time. I don’t think I ever did. And it got
resolved.
MS. BESKE: Great. So in October of 1999, Barbara published Hell to Pay. So I imagine
she had a busy summer getting ready for that publication?
MR. OLSON: Yes. I don’t recall how long it took from the time she was first contacted to
do the book.
MS. BESKE: Who contacted her?
MR. OLSON: The Regnery Company. It was a part of Eagle Publishing, and there may
have been another name of a publisher in there, but someone from Regnery,
maybe it was Al Regnery, but somebody contacted her about doing this book,
and Barbara was initially skeptical and somewhat reluctant because she did
not feel that she was a strong writer. The argument that they made to her was
that we’ll come up with research and someone will do some ghosting to put
together the outline and some substance of the book and that you can then
edit it and the thing is that we think that you will be particularly outstanding
in terms of marketing the book because Barbara was appearing on television
a lot. She had a great broadcasting personality, not just television but radio,
and a great presence everywhere she went.
So that’s what happened. They got a writer who put together an
outline of the book and there was some writing. It wasn’t terribly great
writing, and then Barbara really didn’t have a great feel for writing. She was
an in-person kind of person. Someone told her – I can’t remember who – I
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don’t think I should do this, I’m not a writer, and someone said you don’t
need to be a writer to be an author [laughter]. So that summer, I think it was
that summer, up in Wisconsin, we have a place up in Wisconsin, the book
was fine-tuned by her with a fair amount of time from me going through it
word by word by word.
MS. BESKE: Somebody had the brilliant idea to use the Saul Alinsky motif throughout.
MR. OLSON: Yes. And that must have been either the publisher or the ghostwriter. But it
was clearly a brilliant idea, and as it turned out over time, it proved even
more brilliant because I don’t know how much – I guess we did not know
that he had been something of a mentor or idol or something to Hillary
Clinton, and I think that we later found out something about her thesis in
college or something like that, but it began as everybody knows now, each
chapter of the book with a saying, a slogan or something from Alinsky, and
then it was woven into Hillary Clinton’s biography and character and
conduct. And that was pretty good. I had kind of fun sitting there pretending
to be the author. Barbara didn’t care. She was perfectly happy to have me
write in anything that I wanted and she was somewhat uninhibited about it. I
could say anything that I wanted, so I could do some needling. She was
happy with any of that, and of course I could do it without my name being
associated with it because it was her book.
MS. BESKE: One thing I found interesting, it spent several months on the New York Times
bestseller list. But I couldn’t find any mainstream media contemporaneous
reviews.
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MR. OLSON: No one reviewed it. It was amazing. We felt that well they’re not going to
review this book by Barbara Olson, prominent conservative spokesperson
writing a book that was critical, or perceived as critical, I’m sure it was, of
Hillary Clinton, and we felt that it was just the mainstream media was not
going to touch it.
MS. BESKE: But I would have thought the Wall Street Journal or Washington Times
would review it, or more liberal mainstream media to touch it in order to
trash it, and yet there was not a bit.
MR. OLSON: No. It was amazing. I don’t know the answer to that question, but that does
happen with conservative books. And it’s interesting because Regnery’s
books in those days were regularly getting on best seller lists. In fact at one
point he had three or four or two or three maybe in the top 10 or 15, whatever
the number was, on the list, and they were hardly ever reviewed anywhere.
MS. BESKE: That’s amazing.
MR. OLSON: It was amazing to watch. So then she got on radio and on television and
publicized it and she went around to groups and spoke. She stood in our
kitchen on the telephone doing these radio interviews you could do all over
the country, and when it got published, I said now don’t get your hopes up
because if you sell just a couple thousand copies of this book, a previously
unpublished writer, it’s just not going to happen. And then it kept climbing
up the bestseller list and getting on the bestseller list and seeing her name on
The New York Times best seller list was amazing. And it stayed there. It sold
a lot of books.
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MS. BESKE: At the time period, there were some other books being published about the
Clintons that were of a similar, not laudatory, vein. Was her book out first?
I think it may have been.
MR. OLSON: I don’t think there was anything else out before it, but I’m not sure. You said
there were others out at the same time, I don’t recall.
MS. BESKE: I think they would have been mid-2000s.
MR. OLSON: So after. I don’t remember her having any competition at that time. Maybe
there were other books, but I don’t remember any.
MS. BESKE: So now we’re in 2000. Is Barbara doing a fair bit of travel in connection
with publicizing the book, or is it mostly radio from your kitchen?
MR. OLSON: Some travel, but not so much travel as radio from the kitchen or radio from
her office or local, like Larry King. At some time during this period, she was
doing a lot of Larry King and other cable-type programs as well, but
particularly Larry King. By the time she died, she had been on Larry King
over I think 50 times. I think he told us that she was the guest to have
appeared the second most number of times on his show.
MS. BESKE: To what do you attribute that? Do they have a history?
MR. OLSON: She was good. Once she got on there, people liked her. Even people who
didn’t agree with her because she had a magnetic smile and she never was
brittle or nasty or hard. She would take strong positions, and she wasn’t
afraid of controversy at all, but the way she expressed herself was not
offensive to even people that she disagreed with. I received literally
thousands of letters after her death from people all over this country, many of
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whom said “I didn’t agree with her, but I always wanted to watch when she
was on.” And the people who did agree with her were very, very loyal. I
think Larry King’s people, the producers, and it was CNN became aware of
the fact that she was very popular. I think Bob Dole was the only person – he
had run for President – he was the only person who had been on the show
more than Barbara by the time her death occurred. So she was on a lot. I
don’t know which summer it was, there was a big controversy involving this
congressman – Gary Condit –suspected of being involved in the death of
Chandra Levy.
MS. BESKE: I think that was the summer of 2000.
MR. OLSON: Okay. CNN sent a satellite truck up to our place in Wisconsin, which is 100
miles north of Green Bay, and we’re in the woods. The satellite truck parked
right in our yard and put up those big, tall things that communicate with the
satellites. She was on practically every night from the woods in Wisconsin.
It was amazing. So if that was 2000, I guess that was after the book was
published. So she was doing a lot of things like that, and that helped market
the book. And at some point, she – I don’t remember the times in her career,
but she had been the general counsel to Don Nickles, the assistant minority
leader – or majority leader – in the Senate and then she left and went to work
for Haley Barbour’s firm.
MS. BESKE: Let’s fast-forward through that summer to the election of 2000. The election
night cliffhanger we all experienced. Where were you election night?
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MR. OLSON: We came downtown to the hotel wherever the Republican stuff was taking
place, and I recall sensing it maybe was not going to come out well for those
of us who were in the Republican party. I don’t think we stayed downtown
too late, maybe 10:00 or 11:00 or something like that. I have vague memory
of that. And then on our way home we stopped at Ken Starr’s house. He
was having a few neighbors over to watch the election returns, and we sat
there watching the election returns for another hour or so, had some food and
drink, and then we finally went home. I wasn’t interested in staying up all
night watching it, as close as it was, because I was a little pessimistic about
how it was going to come out and I didn’t want to see it. I think Barbara did
stay up all night.
MS. BESKE: It went back and forth and back and forth and ultimately Bush was called the
victor. Election night was November 7. November 11 was the first time that
the Bush team went to federal court seeking an injunction to stop the manual
recounts that Vice President Gore had requested in four heavily Democratic
counties. At what point did you get involved? Were you involved on the
first sort of November 11 move?
MR. OLSON: I went to the office on the 8th, which was Wednesday, and was just sort of
doing my job. I wasn’t doing anything with the election, but I was aware of
some of the stuff that was going on. And by that time I guess what was
happening in Florida was lawyers were convening on Florida. I think the
Democrats got there first with this recount strategy, but the Republicans were
getting there. I got two or three calls on Wednesday in my office from
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people asking whether I would be available to help manage the litigation that
was perceived to be already starting in Florida about recounts and stuff like
that. And I think one of the calls was from someone in Washington, and I
think one or more of the calls was from Austin, Texas, where Governor
Bush’s people were, asking me whether I would be available and could I help
and if I was asked, would I do it, and so forth. My memory is that I said yes
I would be available, would be interested in doing it. And I remember that
night telling Barbara about this and – Oh, I had to go to Los Angeles the next
day for a law firm management committee meeting or executive committee
meeting or some kind of law firm responsibility, and Barbara urged me not to
go, saying they’re going to call you and you’ve got to be here. And I said if
they haven’t called me by tonight, I’m going. I’m not going to sit around and
wait. So I got on the plane the next morning, the 9th, Thursday, and flew to
Los Angeles. Somewhere in the middle of the country – we had phones on
the planes in those days, you could make phone calls from – and so I checked
in to check on messages, and I had one or two messages on the phone asking
me to call people about this, about the whole situation in Florida. I was
ultimately asked whether I could get myself down to Tallahassee right away.
They wanted me down there. I can’t remember exactly how the role was
described, but I assume they wanted me to sort of be in charge because I had
experience managing massive litigation before.
MS. BESKE: Did you land in Los Angeles and immediately book a flight to Tallahassee?
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MR. OLSON: Yes. I was over Kansas or something like that, headed the wrong direction,
and I called my office and said I’ve got to go to Tallahassee, and they
couldn’t book me from Los Angeles to Tallahassee conveniently and I would
have had to pack a different suitcase and so forth, so I got off the plane and
turned around and went the next flight back to Washington. It might have
even been the same crew. But I had to wait around for 1 ½ hours in Los
Angeles. I never got out of the airport [laughter]. I called two young people
that I thought might be available, and it turned out they were, to ask them
whether they could join me because I wanted some people right away to be
able to help me out.
MS. BESKE: Gibson associates?
MR. OLSON: Both had been Gibson associates. Both had clerked on the Supreme Court,
both had moved on. John Manning was at Columbia – I’m glad you
remember this.
MS. BESKE: I was at Columbia too.
MR. OLSON: So I knew John was a brilliant guy, and then Helgi Walker, who had been
here and was a Thomas clerk and had left here to work for the FCC, and
somehow they were both available. She may have been on leave, I don’t
know. John Manning flew to Washington, I think stayed overnight at my
house, and then the two of us on Friday flew to Tallahassee. Helgi flew to
Tallahassee separately. So we arrived in Tallahassee on Friday the 10th,
about midday. I’ll jump ahead, but you mentioned the 11th. We talked about
what could be done. I had already done some thinking and research. I
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worked on another case involving voting irregularities and recounts and
federal constitutional questions in connection with an Alabama election, so I
already had some thoughts about some of this stuff. We determined on
Friday that we had to file in federal court to stop this recount process. So we
worked all night on the 10th.
MS. BESKE: The three of you?
MR. OLSON: The three of us and there may have been some other people. There were
lawyers all over the place. It was crawling with lawyers, like one of these ant
hills that you study in 8th Grade. So I don’t know who all helped, but
remarkably we got all these papers together, a complaint, application for
temporary restraining order and a preliminary injunction, points and
authorities, I think we had some declarations. Somehow we got all of that
done by Saturday morning.
MS. BESKE: Where were you working? In a hotel?
MR. OLSON: No. They had taken over the Republican Florida headquarters in
Tallahassee, which is the capital, and we were up on the third floor of this
building, and there were only a couple of offices. Ben Ginsburg was in an
office, Jim Baker was in an office, but basically everybody else was working
in this large conference room. I don’t know whether it was that day or
subsequently, I found a broom closet or something close to it on the floor
right below so I could do some concentration. But we managed to get all this
stuff done, and we got in on file in Miami on that Saturday.
MS. BESKE: The court was open on Saturday?
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MR. OLSON: We had been calling the court. My memory is that you were told which
judge was going to get the case or somehow we got it on file so the court was
open for our filing. We got it on file and we got on the calendar for that
Monday – I think it was Monday the 13th – on the calendar for a temporary
restraining order hearing that Monday at 10:00 a.m.
MS. BESKE: Judge Donald Middlebrooks.
MR. OLSON: Yes.
MS. BESKE: So did you do the argument?
MR. OLSON: Yes.
MS. BESKE: At that point, what was your primary theory. Was it equal protection on the
basis that selecting four counties from amongst all of the counties in Florida
and conducting a recount in those alone was problematic? Or was it an
Article II argument?
MR. OLSON: It was an Article II argument and an equal protection/due process argument,
that counting the votes – I can’t remember whether we were just focusing – I
think we probably did focus on the fact that there were four counties – they
selected four counties that were overwhelmingly Democratic counties, and
the rules were different in all the counties, and the way the votes were being
counted was different, and they were changing the standards by which these
punch cards would be evaluated, whether they had to be punched all the way
through or whether they had to be seriously impacted or whether just marked
or somehow they were applying this intent of the voter thing in a very
subjective way, and it was changing from moment to moment and we were
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persuaded that – well we knew that all of those counties were under the
control of Democratic people and that they were probably, we suspected that
the rules changing were all calculated to help Al Gore, and that that was a
violation of the Equal Protection Clause of people whose votes were being
counted differently and a violation of the Due Process Clause.
I took some of this from the case that I mentioned before. There was a
case that came out of Alabama involving the chief justice of that state and the
counting of absentee ballots and whether or not those signatures on the
absentee ballots had to be notarized or not. My memory could be poor on
this. And that there was some change in the process but was very suspicious
with respect to getting the right person elected as chief justice or somebody
not elected as chief justice, had gone all the way to the 11th Circuit. I had
filed an amicus brief, I don’t know on whose behalf, but I filed an amicus
brief supporting the unconstitutionality of the process, and as I recall, the 11th
Circuit had found to be unconstitutional that process of changing accepting
unnotarized signatures, the rules that required notarized signatures or
something, one way or the other, and that was very much in my mind about
that is a constitutional hook.
MS. BESKE: Was that a constitutional hook or a statutory hook? The safe harbor
provision sets up a sort of all laws must be in place before the election rule.
MR. OLSON: I was talking about equal protection and due process at that point. The extent
to which I’ve gotten into the federal statute to which you’re referring, I’m not
sure how sophisticated I was by that point, but we did have Article II, and
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we’d found a couple of important cases in which the Supreme Court had
gotten involved. One was out of Ohio, and I can’t remember where the other
one was from, where the Supreme Court had seen Article II-type issues
relative to whether electors were being picked by the legislature or by the
courts or something like that. I can’t remember how sophisticated we were
on this Article II stuff by that point because it was overnight work.
MS. BESKE: Did you have a team of associates? You learn Florida election law and you
learn the statute, et cetera?
MR. OLSON: I was throwing teams together as fast as I could. I wasn’t counting on the
people outside the Gibson Dunn & Crutcher firmament that were down there,
although I’m sure we were getting help from other people, but I think by this
time I may have engaged some people here in Washington to get started on
this. I know I got a couple of young associates, including a couple young
people that came down to help with – we were doing everything. We were
typing it, we didn’t have secretaries, we were typing it, we were duplicating,
assembling, collating, doing everything all with the supplies that were
available, which were very limited. Anyway, it was a really rough and
tumble operation. I think we flew down on Sunday to Miami on a private jet,
stayed overnight in a hotel there, got up early and went to court.
MS. BESKE: The decision to file in federal court, the decision to be the first to go to
litigation, was obviously at that point described as a slightly risky move.
MR. OLSON: Crazy. People thought I was nutty.
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MS. BESKE: You pursue this course despite that. Was it the perception that Gore was
going to just keep finding votes and chads?
MR. OLSON: We thought the longer the process went on, as long as it was being governed
by or let’s say supervised, orchestrated, conducted by Democratic party
operatives who were determined to elect Al Gore in – and I’m not saying
they were dishonest, I’m just saying it was in the wrong hands. There was
certainly plenty of motive to evaluate how you discern the intent of a voter in
a way that was favorable to more votes. The more votes you are able to
count in the counties where the vote was up to 80% to 85% Democratic Al
Gore, the more votes you found statistically they were going to be Al Gore
votes. And this process was going to go on until Al Gore was ahead.
MS. BESKE: Was there any thought to instead of pursuing litigation seek out a state-wide
manual recount, negotiating within the system but trying to rectify the
selective cherry picking of votes?
MR. OLSON: I don’t think so but I don’t know. I wasn’t making all the decisions. Jim
Baker was there and in charge of all of this. I was very firmly convinced that
we were going to be killed as long as this process went on where all the votes
were counted and recounted. Every time you put the punch cards through a
machine, the results changed. It’s like putting your finger in a river – if you
ever took philosophy. So it’s a different river. And it was a different count
because those chads would be dislodged by just going through the machine,
handling them. Barbara went on television at one point with an unused ballot
card with all those chads and held it up. It was her idea, and I don’t know
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whether it was spontaneous or what. She held it up and it was completely
virgin and whoever was talking to her asked her a question and she held it up
again and she had dislodged a chad with her finger, her sharp fingernail –
showing how easily someone could manipulate the process or how it could
be inadvertently manipulated by any kind of handling at all. So we were
focused on the fact that this can’t go on because the lead was so slim. We
thought it had been counted once under the rules and any further counting
was going to change it, and once the momentum changed, it was going to
have a big effect on public opinion, it was going to have a big effect on
courts because the status quo was being changed. And it was being changed
against us. I felt that we had to go into federal court because we were aware
of the fact that the Florida state court judiciary had been peopled by
Democrats.
MS. BESKE: I know that was the case at the highest level. Was that also the case at lower
levels?
MR. OLSON: I don’t remember whether that would have been the case in the trial court
level or the intermediate appellate courts. And there were cases pending by
this time all over the place about absentee ballots and veterans’ ballots. It
was all kinds of stuff going on that I wasn’t terribly involved in. I made a
decision early on that I couldn’t be the guy supervising all of this litigation
and handle the federal litigation, including the actual wordsmithing, the
written documents, and the oral advocacy in the federal court. I couldn’t do
both of those jobs and do them well. So I said that my best use is – and I’m
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not a Florida lawyer anyway – so my best use is to stick with the federal stuff
and let the other people do that, so I was pursuing that kind of singlemindedly
down the federal court track. We were in touch with the clerk of
the 11th Circuit, and we were in touch with the clerk of the U.S. Supreme
Court just to make them aware that things could be coming and they could be
coming at any hour of the day or night.
MS. BESKE: In addition to the dangling and hanging chads and all that, there was also the
infamous butterfly ballot. It didn’t seem like much, the Gore team made
much of that. They lamented that, and I think Pat Buchanan came out and
said I probably picked up 4,000 votes more than I should have in this
predominantly Democratic county, but at the end of the day, were you
worried about that emerging as an issue?
MR. OLSON: I was aware of it and was concerned about it but I didn’t know which way it
would cut and I wasn’t really focused on it too much. Some people argued
that we shouldn’t – we Republicans – be the first to go to court because
Republicans had been complaining about the lawsuit culture and that we
shouldn’t be the ones to file. But, in my view, and the view that prevailed,
we had no choice. We had to get in there. We had to try to stop this process.
Even if we lost, which we expected to lose, at the TRO stage in front of
Judge Middlebrooks, that would be appealable. A denial of injunctive relief,
even temporary injunction relief, is appealable, so the faster we got, if we
weren’t going to prevail in the district court, which we didn’t think we could,
the faster we got a decision denying us relief, the faster we could get to the
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11th Circuit and the faster we could get to the Supreme Court if we had to go
that far.
MS. BESKE: Judge Middlebrooks does in fact reject on the 13th.
MR. OLSON: It was interesting. I was representing our side, and there were ten or eleven
or twelve lawyers who spoke on the other side. Alan Dershowitz was
representing some group, maybe the Democratic party or the Democratic
party of Florida or the Democratic party of Palm Beach. Larry Tribe was
representing somebody. Somebody else was representing the Gore
campaign. Somebody else was representing the clerk of this county. But
there were ten or eleven or twelve lawyers on the other side, lawyer after
lawyer after lawyer stood up, and of course the courthouse was surrounded
by television trucks, the whole block was. It was a heck of a circus. And the
judge listened respectfully to all of us and heard the arguments and then he
vacated the bench, and as I recall, he came back
MS. BESKE: How long?
MR. OLSON: I don’t know whether it was an hour or two, but it was very, very brief, and
he read a decision, which suggested that it was ready by the time we started.
I’m not criticizing him because that’s sort of what judges do. He was doing
his job. So it wasn’t very long, but he had an opinion that he wrote or he
read, which appeared to have been written.
MS. BESKE: At what point then did you appeal that decision adverse to your position to
the 11th Circuit?
MR. OLSON: Very fast.
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MS. BESKE: Same day?
MR. OLSON: Well we had to fly back to Tallahassee and we had to make decisions and so
I think it was very soon, but I don’t know what day. We got it in the 11th
Circuit pretty fast.
MS. BESKE: Wait a second. Did you first – and forgive me for being a little uncertain
about the chronology – is it possible you jumped over the 11th Circuit and
went directly to the Supreme Court?
MR. OLSON: At some point we may have filed a cert before judgment petition, we may
have done both at the same time. I’m glad you reminded me. I think you
might be correct that we did both at the same time.
MS. BESKE: My notes say Bush lawyers sought to skip over 11th Circuit and appeal
Middlebrook’s’ decision directly to the Supreme Court. Both petitions – so
this would be the petitioner – let me back up for a moment. On the 17th, the
Florida Supreme Court, so that would be Friday the 17th, barred Katherine
Harris from certifying the results and unanimously ruled on November 21
that manual recounts can continue and totals must be included in the final
results.
MR. OLSON: Yeah, so that was a Tuesday.
MS. BESKE: So you have this parallel thing going on with the Florida Supreme Court.
MR. OLSON: So Florida Supreme Court rules on Tuesday the 21st, right?
MS. BESKE: Yes. Middlebrooks has ruled the preceding Monday the 13th. Do you recall
what’s going on through the end of that?
MR. OLSON: That was a separate channel. So the other side was going into state court.
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MS. BESKE: For the very same reason you tried to avoid state court.
MR. OLSON: But what relief they were asking I can’t remember.
MS. BESKE: They were asking to bar Katherine Harris from certifying the results, and
they were asking, I’m not sure the posture, I didn’t look up these pleadings,
they were also asking that manual recounts continue and that totals had to be
included in final results. I guess at that point Katherine Harris’s position was
that that was discretionary. So from the 7-0 Florida Supreme Court opinion,
there’s a petition for certiorari. Then at the same time, there’s the federal
petition arising from Judge Middlebrooks’s decision.
MR. OLSON: Okay. That’s the cert before judgment. So what happened is that this Florida
Supreme Court case I think was argued on Monday the 20th. That’s Mike
Carvin’s argument. It was clear from the argument and the questions that our
side was going to lose, and then the decision came down on the 21st, and I
think it came down in the evening, 8:00 or 9:00, something like that. But we
were already, my team, was already writing the cert petition both here in
Washington and in Tallahassee.
MS. BESKE: I know you were writing the one stemming from the federal case. Were you
also anticipating?
MR. OLSON: Yes. In fact, most of the writing, or the draftsmanship anyway, was
happening here in this office because I expanded the team and I had a whole
bunch of really terrific people here writing. People who knew the Supreme
Court and practice and language and process and procedure.
MS. BESKE: You must have had multiple people just getting no sleep for weeks.
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MR. OLSON: Very little sleep.
MS. BESKE: That’s amazing. Okay, so the Supreme Court gets both petitions and it
denies the federal petition to let the 11th Circuit have its day with it, and that,
I believe, is the Equal Protection argument.
MR. OLSON: Wait. So let me come through this. So the 7-0 decision, so we knew we
were going to go to the Supreme Court – I’m thinking now of the cert
petition from the Florida Supreme Court and so the team was working on this
on Wednesday and Thursday was going to be Thanksgiving. The 23rd was
Thanksgiving, so we were determined to file it on Wednesday. Barbara and I
went to the airport on the morning of the 22nd to return to Washington. We
almost didn’t get to the airport because we walked out at 3:00 or 4:00 in the
morning from the hotel and the tire was flat on my rental car.
MS. BESKE: And that’s in Tallahassee?
MR. OLSON: Yes. And I thought, ‘Good Grief!’ So we limped the car down a block or
two, there was nobody around. I drove the car on a flat tire about a block and
a half to a service station that happened to be open. I put air in the tire not
knowing whether that was going to solve the problem or not and we made it
out to the airport. Somehow that air stayed in the tire. So then I got on a
plane, one plane, that was the only seat we could get that may have gone
through Atlanta, probably did, and Barbara went through Charlotte or
someplace like that back to D.C. So I got back to D.C. in late morning, early
afternoon, and immediately had to sort of massage the papers that we were
going to file so that we could file it at 5:00 or 6:00 that night, Wednesday.
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This is a remarkable thing, it’s less than 24 hours after the Florida Supreme
Court decision. And we had a press conference at Haley Barbour’s office
announcing the filing of the Supreme Court petition. A lot of people thought
and said we were crazy, we were never, ever going to be heard. I guess we
must have also filed the Supreme Court petition from the 11th Circuit because
they had not ruled by this time on our appeal.
MS. BESKE: Linda Greenhouse speculated after the fact on February 2001, in an article
that the Supreme Court refused the 11th Circuit case – rather, the case that
leapfrogged the 11th Circuit which primarily raised Equal Protection
arguments – because it wanted the 11th Circuit to have the opportunity to
develop it a little bit further and probe the arguments.
MR. OLSON: I think that is correct.
MS. BESKE: At the time I think, at least Linda Greenhouse suggests in this article, people
viewed the Supreme Court’s decision to focus on the Article II argument and
the Safe Harbor argument as an implicit rejection of the Equal Protection
argument, but obviously that was hogwash.
MR. OLSON: So on Friday, the 24th, the day after Thanksgiving, the Supreme Court asked
for a response to our petition challenging the Florida Supreme Court. The
other side had to file a response within a few days of the 24th.
MS. BESKE: My notes say that on November 24 the U.S. Supreme Court actually agreed
to hear the argument. I’ll double check that.
MR. OLSON: I know something happened – I thought they asked for a response, but maybe
they didn’t. Maybe it was just they agreed to hear it, but it got set for
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December 1. I guess in between the 24th and the 1st, actual briefs were filed
by all sides.
MS. BESKE: And also in between Katherine Harris certified Bush as the winner on
November 26. So you at this point take over the argument that I guess
Carvin had made before the Florida Supreme Court.
MR. OLSON: Yes, except that he was arguing more – well, I can’t remember his arguments
and to the extent to which they were state law or federal law or both. But
yes. At that point, it was whatever you said. So the oral argument was the
1st, which was a Friday.
MS. BESKE: So let’s talk about your reaction upon hearing that the Supreme Court was
going to have any role in this whatsoever because as you said, people thought
you were nuts. People thought they’d never take it. Were you shocked?
MR. OLSON: I wouldn’t say shocked. I was very gratified because not only did people
think I was crazy, there was one lawyer/pundit that came on television and
accused me of professional malpractice.
MS. BESKE: On what basis?
MR. OLSON: Because it was frivolous, there was no chance, there was no basis and we
were abusing the whole process and it was unfounded and all that stuff. So
anyway I was very gratified because everybody was saying it was a long,
long, long shot, and of course I knew it was not going to be easy. So I was
very gratified that yes, we were going to have our day in a place where I
thought we would have a fair hearing. So then the argument was the 1st.
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MS. BESKE: Let’s talk about preparation for the argument. Typically, I assume, before
you do an argument you have a few moots.
MR. OLSON: Typically. But we didn’t have time because of the briefing and so forth. I do
remember we had a sort of roundtable discussion in 9A here of the issues and
included ten or twelve lawyers. John Roberts was one of the people in that
room. Everybody would have loved to have John involved in whatever way
we could because he was a bright young lawyer and I had known him when
he first started at the Justice Department. He had been down to Florida. He
couldn’t be involved, but he was down in Florida involved in an adoption
process. But he did come to that session in 9A, and I was kind of encouraged
because I was impressed with John, his intelligence and his judgment. He
thought we had a good case.
MS. BESKE: A good case on the merits or a good case for getting heard?
MR. OLSON: On the merits because we were already at that point. There were a couple of
people here and so forth. I do remember that independently because I
thought that’s someone outside who hasn’t had time to be deeply involved in
this and totally caught up in it and breathing your own gas and that kind of
thing so I respected that kind of independent judgment. It was nice to have a
little bit of reinforcement when there wasn’t a lot out there. And then I guess
we had a decision on the 4th, 9 to 0, sending the case back.
MS. BESKE: Do you regard that as a punt?
MR. OLSON: No. I regarded that as a 9 to 0 victory. It vacated the Florida Supreme Court
that was against us so I didn’t regard it as a punt at all. I thought it was an
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overwhelming victory. I didn’t know where it was going, and I didn’t know
how the Florida Supreme Court would deal with it, but by then, we had
raised these issues involving the federal statute and all of these things, and so
I can’t remember the pre curium opinion. We don’t know who wrote that or
who had the biggest hands in writing it.
MS. BESKE: It sought some clarification from the Florida Supreme Court.
MR. OLSON: Yes, a what-are-you-talking-about sort of thing. That’s the way I interpreted
it.
MS. BESKE: Did it give them a means to sort of a way out?
MR. OLSON: Well, yes, but they were going to have to explain things that I think were
inexplicable. They were rewriting the Florida Election Code. When they
were rewriting the Florida Election Code, they were taking it away from the
legislature to decide how electors would be selected, so I thought they were
headed into a trap, not a trap, but a dead end. Whatever you might call that.
Plus this whole – I thought we had a pretty good record on the fact that
people were changing the rules from 10:00 in the morning to 11:00 a.m. the
same day, and doing it on television. It was hard to hide it.
MS. BESKE: Linda Greenhouse in this article said that her impression after the fact was
that the Supreme Court’s per curium was intended to be a clearer warning to
the Florida Supreme Court than the Florida Supreme Court appeared to
grasp.
MR. OLSON: They didn’t seem to get it. In the meantime, by the way, we had to go down
– the 9 to 0 decision was Monday, and I thought – well Larry Tribe argued
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that for Vice President Gore on the 1st. That was Larry Tribe. So we flew
down to Atlanta on the 5th.
MS. BESKE: For the 11th Circuit?
MR. OLSON: For the 11th Circuit en banc, I think on the 6th or 7th
MS. BESKE: And they just en banced it on your motion or on theirs, sua sponte?
MR. OLSON: I don’t know whether we asked for it or not. I can’t remember. But it was
en banc.
MS. BESKE: Did you argue that?
MR. OLSON: Yes. The Gore side on this one was Teresa Roseborough who had been
involved in the case I guess. She’s a former Supreme Court clerk. I think
she was a Stevens clerk. Very superb lawyer.
MS. BESKE: So that was a shift of gears for you because the December 4 argument
focused primarily on the Article II and Safe Harbor arguments, and the
December 5 argument would have been primarily – well not primarily, but it
would have raised some of those but also Equal Protection. The December 5
argument would have been a shift.
MR. OLSON: What’s in the oral argument and what’s in the briefs won’t always coincide,
as you know. But yes, I guess. I can’t remember without looking at the
transcript of the 11th Circuit argument, but I think we were focusing to a
certain degree, if this is what you said, I think the answer is yes. On the
equal protection and due process issues there because I remember I still had
in my head that previous 11th Circuit decision which I thought was very
favorable to us with respect to changing the rules in the middle of the game
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the way ballots were being counted. I can’t recall when that decision came
down.
MS. BESKE: The 11th Circuit? I’ll check that. That would have been against you?
MR. OLSON: It was against us, and it was like 7 to 4, something like that.
MS. BESKE: So December 8, which is a Friday, the Florida Supreme Court rules, this time
fractured, 4 to 3, ordering state-wide manual recount of under-votes, ballots
that do not appear to have reflected a vote. Many have characterized that as a
startlingly broad decision. At that point, were you surprised?
MR. OLSON: Yes.
MS. BESKE: Because of the 9 to 0 per curium?
MR. OLSON: They didn’t even mention it the Supreme Court’s 9-0 order vacating their
earlier decision. They didn’t mention it. I really hit them hard on that on
Monday in the oral argument and in our briefing on Saturday. So it was 4 to
3, which was encouraging. They didn’t mention the Supreme Court decision.
They opened this thing up in a way in which the federal statute with respect
to the so-called Safe Harbor, which is the word you used before, if your
recount is certified by such and such a date pursuant to the rules that were in
place at the time of the election then it would be presumptively correct or
something like that. They couldn’t have met that deadline. Now the
statutory deadline was killing them because it was going to be a few days
into the next week. And the way this process had been going, they couldn’t
possibly do it. They could not remotely, humanly possibly do it. So that
Friday night after that decision, they were starting to do the state-wide
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recount; it was going on all over the place and we had people trying to watch
this one and watch this one, lots of people – the decision was at 4:00 or 5:00
in the afternoon. We got our petition to the Supreme Court on file within
hours. It was a motion to stay and an application that it be treated as a
petition for certiorari. To this day I can’t imagine how we did it. Three or
four hours, and you know all the stuff you have to file.
MS. BESKE: Are you all clustered over a single computer?
MR. OLSON: No. I don’t remember even. No, we weren’t all in the same place, but we
had some people in other places. I tried to stay in my office to a certain
degree because you can’t do the writing and do the thinking at the same time
there were things that I wanted in it, there were things that people were
pressing us to put in it that I didn’t want to put it in. There were people on
the phone all Friday night telling us various different things that we ought to
do. I mean all night Friday night, even after we got the thing on file, about
this, that and the other thing that I didn’t want to do, I wanted to keep it
focused. And as you know around noon or shortly thereafter on Saturday the
stay came down.
MS. BESKE: Did that surprise you, or did you expect it given the Florida court.
MR. OLSON: We didn’t expect anything. I was very, very gratified that once you get a
stay if you get a stay it means that the court has determined that there’s a
high likelihood that you’ll win on the merits.
MS. BESKE: You had five.
MR. OLSON: You had to have five votes to get a stay.
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MS. BESKE: And moreover you knew which five votes.
MR. OLSON: You could have had more. You had to have at least five votes that were
taking your arguments seriously.
MS. BESKE: You had five because Stevens wrote a dissent joined by three. So it was 5-4
at this point.
MR. OLSON: You’re absolutely right.
MS. BESKE: Stevens’s dissent prodded Justice Scalia to write a concurrence, but nobody
else signed on that.
MR. OLSON: Yes. And then our briefs were due Sunday, the following day, about the
same time in the day. These had to be, I think, printed in the regular format.
MS. BESKE: I looked them up and read them and they were 50-page briefs.
MR. OLSON: Yes. And I still to this day haven’t found a typo. Not that I’ve gone back to
look for one, but I’m stunned. And the other side did too. I’m stunned that
we did that much work in 24 hours. No matter how much head start you had
with respect to the stuff we were writing, it was stunning to get that done.
MS. BESKE: And I noted that the Chief, the first thing he said when he said when your
argument went in, he said before we do, before you get going, Mr. Olson, I
want to congratulate all the parties on the excellent caliber of these briefs in
such a short period of time.
MR. OLSON: Yes. That was very kind of him.
MS. BESKE: What was your impression of the argument? Did you believe at that point
that Kennedy and O’Connor were still in play?
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MR. OLSON: Let me say first of all that on Saturday night, I was busy preparing; we knew
that we were having argument at 11:00 on Monday, I think it was 11:00, so I
knew I had less than 48 hours to get ready for the Supreme Court argument
that was potentially deciding the presidency of the United States.
MS. BESKE: Surreal at that point.
MR. OLSON: Unbelievable. So you have to try to get a little sleep somewhere in there, but
you know you don’t have time to get much sleep. At some point that
Saturday night I think we learned that Larry Tribe had been replaced.
MS. BESKE: Any theory on that?
MR. OLSON: Tribe had lost 9 to 0. I like Larry Tribe, and he and I get along very well and
I have great respect for him. I have his books in my office, but his style in
the Supreme Court on the 1st had been somewhat professorial – he is a
professor – and I felt that that the chemistry, or the tenor, of the argument
wasn’t at his peak. I didn’t think it was working. The Court decides these
things on the merits. They don’t decide on the oral arguments or who makes
a better argument, but I didn’t think that the chemistry was good in that
courtroom. David Boies, of course, is very good, and he had done a very
good job in Florida, although most of the time he had been handling state
court stuff.
MS. BESKE: So he was already down there.
MR. OLSON: Yes. He had been down there.
MS. BESKE: Did you know him well before that?
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MR. OLSON: I didn’t know him at all. I had met him, but I can’t even remember the
circumstance. I knew who he was and I admired him because I’ve watched
him on television. I’d be on television and he’d be on television and I’d
watch him. He’s very good because he makes very crisp, very clear,
compelling arguments in a simple way, syllogistically, A, B, therefore C.
MS. BESKE: Was he on the briefs, or was that at that point still Tribe? The briefs that
were filed on Sunday the 10th.
MR. OLSON: I don’t recall.
MS. BESKE: I’ll check that.
MR. OLSON: I’ll tell you one more thing. I was sitting in my office here Sunday morning
frantically reading cases and trying to get ready to the extent that you can and
David, they thrust David out to be on Meet the Press, Face the Nation,
whatever the other programs were, and so we sat in our offices, including my
office. I had a television on, listening to David Boies make his arguments
that he was going to be making the next day [laughter], and I thought well
this is nice. We’re now getting a preview of what he’s going to say. I had
told everybody that once the Supreme Court in both cases had agreed to take
the case, I was doing no media because I don’t think Justices like that too
much. But anyway, I thought it was great for us to be able to have a preview
of what he was going to say. Go ahead with your question. I’m reminiscing
[laughter].
MS. BESKE: What was your impression of the argument itself?
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MR. OLSON: One of the things that happened that was interesting is that there was a part of
our brief that I think that we led off with that I was not enamored with, but
sort of got talked into. I was convinced in my heart that this wasn’t what I
wanted to say or this wasn’t the way I wanted to go, but everybody around
me was disagreeing so I thought I better listen, and I started off the argument
on that vein, and not very long into it, I got a question from Justice Kennedy
that suggested – it was clear to me that the Chief Justice was very interested
in this Article II stuff. Some of this is hindsight and how much of it I
remember at the time, but Justice Kennedy asked a question I think that told
me that he wanted to hear more about the Fourteenth Amendment issues, and
I wrap up the Equal Protection and Due Process as sort of overlapping and
one and the same in a way in this context, so I immediately, as I recall,
probably remembering things more in my favor than they are in reality, but
my memory is that I went immediately into that stuff because I had always
liked that. The structural things are very important in a president election,
but atmospherically, the Fourteenth Amendment stuff – because everybody
had seen it on CNN and all this process you could see it going on, I thought
that had emotional flavoring to the process. The possibility that you could
manipulate what was coming out in one state and affect a whole nation, a
presidential election. At any rate, I segued into that, and there was another
part of the argument that was interesting I think one of my co-counsel from
one of the Florida firms was representing the Secretary of State something
kept misstating the names of the Justices.
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MS. BESKE: I heard that. It was hilarious. Finally he said “I just quit.” He called
somebody Justice Brennan then he called Justice Souter the wrong name.
MR. OLSON: Brennan had been gone and then he had the other name wrong and then the
third time he didn’t say it but Justice Scalia asked a question and he started
off and said, “I’m Scalia.” [Laughter]. I think that’s how it happened. And
then I remember some of David’s argument. At one point I was taken by the
fact that David cited a Florida decision, and he gave the citation, 275 SE 3d,
and with the page number, and I thought that’s very impressive, but I don’t
think they cared about what the Florida Supreme Court says and you don’t
need to tell them what the citation is in the Supreme Court. They’ll find it.
And then the other thing that I remember is that I think Justice O’Connor said
what would you say the rule should be about the counting of these ballots,
and it didn’t sound like David had anticipated that question. He didn’t give a
very crisp answer, and I think I had a rebuttal, and I think I said something
about punched all the way through, that’s what it says. But I’m not sure that
that’s in the argument. It could be in my memory. But there’s so much
tension, and it’s hard to remember even the minute after it happened what
happened during the argument.
MS. BESKE: Did it seem like a possibility to you that Justice Breyer and Justice Souter
might jump onto the Equal Protection argument at argument?
MR. OLSON: I don’t recall thinking that.
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MS. BESKE: It looks sort of after the fact that there was – it was a pretty close case in that
a coalition was attempting to draw Kennedy into a different sort of remedy,
but all of that was invisible.
MR. OLSON: Well I won’t say it was invisible, because I can’t remember. I just don’t
recall.
MS. BESKE: So argument then is the 11th, and what time of day on the 12th do you —
MR. OLSON: It is crazy. You have nothing to do but think about when is it going to
happen and what is going to happen.
MS. BESKE: And you know it’s going to be quick.
MR. OLSON: The entire world is watching. The entire world. It’s hard to imagine
anything where there was more focused national/international attention.
There certainly has never been anything where there’s more focus on an
anticipated Supreme Court decision deciding the Presidency of the United
States. I referred to this in speeches subsequently as a perfect storm. It’s a
political storm, a legal storm, a media storm, and they were all wrapped in
together, just putting all that 35 days of energy, emotion, adrenaline,
exhaustion all together. Somewhere during the day I said – Barbara was
driving me crazy because I couldn’t get my – I tried to concentrate on other
things, but Barbara was just a lunatic. She was climbing the walls. I said at
some point let’s go to Neiman Marcus and we’ll buy anything you want.
Barbara was a heck of a shopper, and Neiman Marcus was deeply indebted to
Barbara. We went to Neiman Marcus and we couldn’t concentrate. Barbara
couldn’t buy anything, so we went over to the gourmet grocery store in
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McLean and we bought the best steak, and we bought caviar, we bought
smoked salmon, we bought expensive wine. We decided what the hell.
MS. BESKE: So this is Tuesday?
MR. OLSON: This is Tuesday the 12th.
MS. BESKE: Is it afternoon at this point?
MR. OLSON: Sometime during the afternoon we did this shopping binge. We just had to
do things, so we bought all this great food and wine and everything like that
and we thought we can’t just have it just the two of us, so we call up Alice
and Ken Starr. They lived in McLean just down the way. I don’t know
whether we thought of anybody else or not, but we invited Ken and Alice
over. The irony or coincidence is that we were with them on election night
and we were with them at our house on the 12th.
MS. BESKE: Are they as distracted with anticipation?
MR. OLSON: Yes. But at least we were doing the same thing. Around 10:00, I think it was
around 10:00, a call comes in and Denise over at the court said “We have a
decision, will you hold?” She explained either then or subsequently that
what the clerk had told all of his assistants and subordinates to get each of the
lawyers on the phone so that each would hear the same thing at the same
time. Nobody would have an unfair advantage. So she started to tell me that
there’s been a decision, there’s a reversal or I don’t know whether it was
reversed, vacated, whatever, and there’s a per curium decision and then
there’s a concurring opinion, and there’s a dissenting opinion by Justice
Stevens, joined by A,B, C, and a dissenting opinion by Justice Souter joined
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by C, B, D, and then each one of the four dissenting opinions joined by the
other three. It was impossible to figure out what the hell had happened,
except that the four dissenting opinions by four different Justices that I knew
weren’t on my side, I knew we won.
I think we had to get it by fax. I was sitting upstairs in my office. Barbara
was downstairs with Ken and Alice, and I was trying to get a fax to come in
or something. We got a fax. It was pretty quick, but I don’t think like today
you just click on the thing and print it out. I yelled down to Barbara because
she wasn’t on the phone with the call to the clerk. Anyway, we sort of
resurrected what the hell it was. I almost immediately got a call from Austin,
I think it was Ginsburg or Baker or all of them, saying “what happened?” I
said we won, we won. I don’t remember a whole lot more after that.
Although then I sat down and read what it was. I did note that we had on the
equal protection stuff we essentially had seven votes. It’s hard to say it
exactly and David disagrees with me, but I say it wasn’t 5 to 4, I say it was 9
to 0 and then 7 to 2, so it’s 16 to 2.
MS. BESKE: Nice. It is interesting to see how close the Breyer/Souter wing may have
been to snagging Justice Kennedy, and if they had, obviously, I think Justice
Ginsburg and Justice Stevens would have been happy to jump on. I imagine
it was insanity in the courthouse.
MR. OLSON: It must have been. And of course it was insanity on the courthouse steps
because it was cold and it was windy and the reporters came running out onto
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the courthouse steps. I think one of them got it wrong, but there were papers
flying and they didn’t know exactly what the Court had done.
The thing that hardly anybody focused on is that the calendar compelled
the stopping of the recount. Because the recount could not have been
completed in time, and there was a footnote or something in the opinion that
says that the Florida Supreme Court – at some point, maybe they did it the
next day – but the Florida Supreme Court had said that the federal statute
with the federal statutory calendar was a part of the Florida election law.
Once it was a part of the Florida election law, then the presumption had to
be, there had to be a certification by such and such a date based upon the
rules, and that date was either the 12th or very close to the 12th, so that that
provision, which the Florida Supreme Court had said was a part of the
Florida Election Code, couldn’t be complied with if they didn’t stop the
recount. So that’s what I’ve said subsequently. I’d like to write my own
book about this at some point so that I could say that more clearly, but I think
that’s been overlooked to a certain degree.
MS. BESKE: One of the dissents said, I believe it was Stevens, the only relevant date that
matters should be December 18, which is the deadline for casting the votes.
But it’s your argument that because the Florida legislature had evinced an
intent to comply with the Safe Harbor date, that was the date.
MR. OLSON: Yes. And I remember that now, him saying the 18th, and I didn’t then and
don’t now, agree because of that, what you said just as well as I could.
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MS. BESKE: Immediate aftermath of the decision from your perspective, you have the
Starrs over. You’re upstairs reading but then you come down. The days that
follow, what’s your recollection?
MR. OLSON: There wasn’t much left of the day. I guess we maybe had another glass or
two of wine. I don’t remember. I think the next day was the day that
Al Gore conceded.
MS. BESKE: Do you recall – you must have done a lot of sleeping.
MR. OLSON: I don’t think you can sleep right away. There is just too much accumulated
adrenaline. I think there was a party at one of the hotels in McLean. Maybe
that was the 13th. I remember going to some event that was a “finally” – the
thing that we would have otherwise done back here on November 7. And
then I do remember the Gore speech, which I thought was very gracious and
wise and statesmanlike.
MS. BESKE: During this period, the period up to the 12th, did you have any interaction
with Bush himself? I’m sure you were so busy lawyering.
MR. OLSON: I definitely heard from him that night. I think I heard from him in the car
after the argument, and we got on the phone, and I spoke to him and maybe
Don Evans or somebody. I think Karl Rove’s car. Maybe I was in Don
Evans’s car, but I think I spoke to Governor Bush on the phone right after the
argument. And then, of course, I spoke to him on the 12th.
MS. BESKE: The Supreme Court’s decision elicited a real sort of fire storm in America,
and Justice O’Connor in 2013 says, upon reflection, we really didn’t know
we were going to take such a hit and said we perhaps ought not to have
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jumped into that one. With the benefit of hindsight and 16 years, what’s your
take on the wisdom of the Supreme Court involving itself?
MR. OLSON: I think – obviously – I thought it was right at the time, and I think it’s right
now, and I think that the earlier cases that we’d cited I think I remember this
one out of Ohio or something like that where the court had said that under
certain circumstances, we have to be involved. The interest of the people in
the whole United States could be determined by what has happened or may
properly be happening or not properly be happening in a particular state that
controls a decisive cohort of the electoral college votes. I think that in
retrospect I think this was the better result. If votes had been cast and gone
into the Congress, contested electoral college results would have had to have
been counted in a process in Congress that was controlled by the President of
the Senate. And the President of the Senate was the Vice President of the
United States, which was Al Gore. So that process would have been very,
very fraught with political partisanship, and it would have stretched the thing
out, and you have to have a President on January 20. The President that
holds office no longer holds office. There’s no President of the United
States. There’s no Vice President of the United States. There’s nobody.
And so there might be something in the Twenty-fifth Amendment, but I don’t
even think that covers it. So let’s just say for purposes of this conversation,
my state of mind is that there has to be a President on January 20. It has to
be over with. And God knows what would have happened in the Senate, I
think one state, one vote, with respect to the process. Again, I could be
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wrong about some of this because it’s been a while since I’ve thought about
it.
MS. BESKE: Luckily you had the prospect of the Hayes/Tilden election to refer back to it.
I think that was a very effective argument, to keep referencing 1876 and just
the debacle that was that election.
MR. OLSON: And that was decided by the Supreme Court. Five Justices of the Supreme
Court, not as justices of the Supreme Court. There were five members of the
House, five of the Senate, five from the Supreme Court, two of which were
Republican, two of which were Democrat, one was supposed to be an
Independent. That person resigned from the Commission to be in the Senate
from Illinois. That person was replaced by another Justice who was a
Republican, hence it came out 8-7 all the way across the board. That’s not
the way the Supreme Court should be involved.
MS. BESKE: I think it probably makes sense to stop now.
MR. OLSON: Okay.