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Jeffrey Toobin Interview
November 8, 2001
This is the transcript of an interview by Carolyn Kay of MakeThemAccountable.com with Jeffrey Toobin, author of Too Close To Call:
CAROLYN KAY (Caro): This is Carolyn Kay with MakeThemAccountable.com, where we do our best to make our politicians accountable for their actions and the mainstream media accountable for their conservative bias.
My guest is Jeffrey Toobin, an attorney, staff writer for The New Yorker, ABC News legal analyst, and author of two bestsellers, The Run of His Life (about the O.J. Simpson trial) and A Vast Conspiracy (about the Monica Lewinsky scandal and the Clinton impeachment—both of which I’ve read, by the way.
Jeffrey’s latest book is Too Close To Call: The Thirty-Six-Day Battle To Decide the 2000 Election, and that’s the book we’re going to talk about today. I have to say that I thought I kept pretty well informed during the 36-Day War, as some people have called it, but I found out new information by reading Jeffrey’s book. So don’t hesitate to buy his book if you think you kept up with what was going on.
Jeffrey is the first journalist to have been #1 allowed to and #2 willing to say on national television, on Tuesday, October 30, 2001 on the Today show, that Al Gore won the 2000 election, and that the wrong man was inaugurated on January 20. You’ve been touring the country to sell your book, Jeffrey. What kind of reception are you getting to this news?
JEFFREY TOOBIN (JT): Well, obviously my concern was that people had moved on to other subjects, obviously especially in light of September 11, but I am struck by the incredible passion that I hear in a lot of people about the events of November 7 of last year and their aftermath. And it does not diminish the importance of the terrorist attack to recognize that the events of November 7 were deeply profound for American democracy.
Caro: I agree, I agree. I do have to take issue with you on one thing you said on the Today program. Katie Couric asked you if the media had done its job in the election, and you said it had done “okay.” I have to tell you that those of us in the hinterlands who were also getting information on the Internet, it appeared to us that the mainstream media had actually joined the Bush campaign.
JT: Well, you know, it’s interesting. I was a little taken aback by Katie’s question, and hadn’t really thought it through. I think… I’m always wary of generalizations about “the media,” because it is such a broad and diverse group. I do think the mainstream media was very tough on Al Gore, and I think one of Gore’s problems throughout the recount period was that he was too worried about what the mainstream media was saying. And he was worried about… that… the mainstream media claimed to speak for the American people, regularly.
Caro: I know.
JT: And the difference between… what the… but in fact, the broad majority of the American people often disagreed with that view. And I think Gore was too willing to accept the authority of the mainstream media.
Caro: Right. In fact, I was going to ask you about this R. W. Apple that you wrote about…
JT: Right, Johnny Apple.
Caro: Who basically instructed Gore that he only had a week to wrap up the recount.
JT: Right, and you know the thing about Johnny Apple is that he reflects the conventional wisdom in Washington, which is a very powerful force there. And he didn’t make that up. There were a lot of people who thought that Gore had to concede quickly. But as is so often the case with the conventional wisdom in Washington, it was just simply wrong. There was no groundswell of support for an immediate withdrawal. There was enormous support for the idea of taking your time and seeing what the vote showed. But I think Gore’s worry about extending the process too long led him to make several mistakes along the way.
Caro: Right. That’s not the first time the mainstream media has goofed, big time, as Dick Cheney might say. During the whole impeachment thing…
JT: Exactly. One of the things I realized in working on Too Close To Call was that it was ultimately a sequel to A Vast Conspiracy. That you had many of the same players, but you also just had several of the same names in American politics, reasserting themselves.
Caro: Yeah. So this book is about how George Bush prevailed in Florida, without being the winner of the popular vote, either in the state or in the nation, and you say that the Republicans were ruthless, while Gore and his people tried to be fair, consistent in what they asked for, statesmanlike. But in America today you don’t win by doing the right thing.
JT: And I think… one of the themes of Too Close To Call was the conflict between Bill Clinton and Al Gore about what the appropriate strategy was, because Clinton was the street fighter that Gore wasn’t.
Caro: Became that, don’t you think? Early on in his administration he allowed himself to be mau-maued as well.
JT: Well certainly by the end of his tenure he knew that the conventional wisdom in Washington was rarely going to look on him with favor, but he also recognized that the conventional wisdom in Washington didn’t always speak for the country at large.
Caro: Right. Well, considering the affection in which so many of the American people hold him, you’re absolutely right. So you disagree with Jake Tapper, who said in his book, Down and Dirty, that the Gore team was just as venal and opportunistic as the Bush team.
JT: I definitely disagree with that view.
Caro: I disagreed with it, too. I couldn’t even finish the book I was so upset with him. Usually I like his writing, but… Now, let me ask you this too, some people say this is politics as usual, but I don’t remember ever seeing such hardball tactics, do you?
JT: Well, I think it’s hard to compare the recount struggle to anything else in American history, because it was just so different in terms of the stakes and the subject matter. But James Baker came to Florida recognizing that this struggle had political and legal components, and Gore directed his team to view the struggle as principally a legal matter. And that was just a big difference in philosophy between the two sides. And I think Gore paid a real price for that.
Caro: Yeah, I agree with you. Something I didn’t know but was very glad to know so that it helps me understand—you said that the Republican Party was really radicalized and the Gingrich surge came about because of an election in Indiana in 1984.
JT: Right. That’s a fascinating chapter in American electoral history. In 1984, in what’s become known as the “Bloody Eighth” Congressional district of Indiana, there was a recount between a Democrat and a Republican. And I think it’s safe to say that the Republican was really ill treated in that process. And the then Democratic majority in the House really jammed through the victory of the Democrat. And that was an important part of the radicalization of a lot of Washington Republicans. And I think it led them to believe that the Democrats would always act with that sort of power hungry approach. As I write in Too Close To Call, I think, in fact, the Democrats didn’t behave that way in 2000. But certainly that 1984 controversy was one of the triggers for the Gingrich Revolution.
Caro: One of the interesting things is that in a lot of the hate mail that I get, they’re always saying, “Democrats have always stolen elections.” As though two wrongs make a right.
JT: Right. I don’t doubt that some of the Democratic machine politicians have stolen elections, but I certainly don’t think that Al Gore stole Florida, or even tried to steal it.
Caro: Right. But even so, two wrongs don’t make a right.
JT: Of course. And the same people who say that, “Well, Democrats steal elections all the time,” don’t acknowledge that the Republicans stole anything in 2000, so there’s no parallel.
Caro: Exactly. Exactly. So what I’m hoping for this election is that it’ll be that same kind of energizer for the left.
JT: It’s interesting. I think we have not yet seen the full legacy of the 2000 recount in our politics. As a day to day subject of discussion, it has certainly faded. But I think when particularly the base of the Democratic Party convenes over the next few years, it will certainly be a rallying point for outrage.
Caro: Yeah. Your book makes it clear that the Republicans planned better, strategized better, were more focused and better prepared, and more dedicated to the cause of getting their man in the White House than the Gore team was.
JT: There’s no question in my mind. You only have to look at the difference between Warren Christopher and Jim Baker to see how those differences played out. Warren Christopher is an eminent lawyer and a former Secretary of State, and someone with virtually no experience in politics. James Baker is the only person in American history to run five consecutive major party campaigns for president. He is a statesman, but also a street fighter. And just to give you one example, I was struck by how one of the first things Baker did was summon Roger Stone, one of the most bare-knuckled political operatives in the nation, to go down to Miami and organize the Cuban community to get into the streets about the recount.
Caro: And yet Gore refused to have the unions and the Blacks.
JT: Right. And Gore specifically told Jesse Jackson, who had started to organize protests, to knock it off. As a reporter, who was in Florida during this period, I was struck by the complete absence of Gore protesters anywhere.
Caro: I was struck, too.
JT: You can’t help but think, when you’re covering a story, and one side is in the streets and one side isn’t, that one side cares and one side doesn’t. That does begin to have an impact on you.
JT: The passion gap between the two sides was really noticeable from the very beginning.
Caro: Okay. Tell me—Katherine Harris—is it really true that she has 101 Dalmatians?
Caro: They called her Cruella deVille.
JT: Oh, Cruella deVille. Oh, right. You know, in terms of shocking new facts, the one that struck me most in Too Close To Call, relates to Katherine Harris. Because if there’s one thing we heard over and over again during the recount was James Baker and others saying that the votes had been counted and recounted. But I learned that in the so-called automatic recount, during the first two days after the election, not all the votes were recounted. In fact, a quarter of the votes, 16 counties, 1.25 million votes, have never been recounted to this day. Because Katherine Harris’s office didn’t want to take the chance that those votes, having been recounted, would put Gore into the lead.
Caro: Even though her office had issued an exact opposite ruling.
JT: Her office had said specifically, on this very question, that optical scan counties in automatic recounts had to physically run the ballots through the machine again. Yet they never instructed the counties to that effect.
Caro: That was on purpose.
JT: So that means a quarter of the votes in Florida have never been recounted, since election night. And that includes all of the media recounts. These have never been examined by the media. It’s just a breathtaking example of how what we take for granted as true is often false.
Caro: Right. And it was illegal not to count those votes, wasn’t it?
JT: Well, legal suggests criminality.
Caro: I know. That’s what I’m suggesting.
JT: I don’t know… The point to me is that Florida had established procedures for dealing with automatic recounts, and Harris’ office made sure that those rules were not followed.
Caro: They were thwarted.
Caro: You are the first journalist to conclude that the mob of Congressional aides who rioted in the Miami-Dade Canvassing Board offices, really did shut down the recount in that county.
JT: Well, I think it’s important to emphasize that it wasn’t just Congressional aides, that the legacy of Elian Gonzales, and the Cuban-American community in Miami, was just as important, if not more important, in shutting down the recount in Miami.
Caro: So there were some of those people in it as well.
JT: Absolutely. And again…
Caro: And the threat of more, as I understand it.
JT: And it was a specific, intentional policy by the Bush campaign to get the Miami Cubans into the streets, just as it was a policy to get the Congressional aides down from Washington and into the streets. At the same time, Gore was saying this is a legal, not a political process.
Caro: And yet, isn’t it illegal to interfere with elections, in the United States of America?
JT: Yes, it is illegal to harass people and assault them. There’s always the question of what is peaceful protest and what isn’t. I happened to hear Bill Clinton say not long ago regarding the shutdown of the Miami-Dade. He asked the rhetorical question, “If those were black people banging on those doors, do you think they would have been arrested?”
Caro: Obviously they would have.
JT: What happened in Miami was that the authority of the county was with the protestors more than the people who wanted to count the votes.
Caro: Either that, or they were just afraid of those people.
JT: Um, I think if they had wanted to stop them they could have been stopped. It was more political than that.
Caro: That’s interesting. I hadn’t even thought about that. Like you, I object to this business when people say the votes have been counted and recounted and recounted. And recounted and recounted.
JT: Right. It’s just never happened.
Caro: And I thought I was going to break the television if I heard one more bottled blond say something about “deviiiiiiining the intent of the voter.” That was the law too, wasn’t it?
JT: That’s right. The Republicans made a fairly normal process in American elections look ridiculous, look like it was an exercise in clairvoyance—when in Texas, among other states, the practice of recounting votes, recounting ballots to determine the intent of the voter is perfectly standard. And anyone who knows anything about recount procedures recognizes that the way to get a more accurate result is to do a manual recount.
Caro: Right, that’s standard.
JT: That’s Recount 101.
Caro: And the people who made the machines said the same thing.
Caro: When the Florida Supreme Court made its first ruling, and dressed down Katherine Harris for being unreasonable, arbitrary, and acting contrary to the plain meaning of the statute. One of the Bush team, Ben Ginsberg told you he was afraid that the “Republicans would never get a fair shake.” But they had gotten all of the breaks up until then. Doesn’t that tell us something about the mentality of the Republicans?
JT: One of the subtexts here was that Tallahassee was a deeply polarized community, with the governor and both houses of the legislature in conservative Republican hands, and all seven justices of the Florida Supreme Court having been appointed by Democrats. And the tension between the Court and the rest of the state power structure was intense. And Republicans fixated on the Court as a rogue outfit, when I and I think a lot of others thought that their rulings were fairly straightforward.
Caro: Right. Right. That’s been quite consistent among law professors and scholars, and so on. But the Republicans definitely won the PR wars.
JT: Well, on that issue I’m not sure, actually. I think they did win the PR wars in some areas, like divining the intent of the voter. They made a lot of progress there. I don’t think the broad American public thought the Florida Supreme Court was some sort of outlaw organization.
Caro: I have heard that…
JT: Well, I’m sure I’ve heard it.
Caro: In my very building. And I go, “What do you mean?”… And Baker invited the Florida legislature to become involved.
JT: Well, that was the specter haunting the background of this story throughout the 36 days, which is there was always the possibility that even if the vote totals were certified in Gore’s favor, the Florida legislature, under the U.S. Constitution, could vote to award the state’s electoral votes to Bush. It’s clear that that was a realistic possibility. After the fact, Baker and others told me that they believe that Bush probably would have withdrawn rather than invoke the power of the state legislature to essentially override the will of the voters.
Caro: Gosh, I have a hard time believing that.
JT: I think that may be after-the-fact statesmanship. Given the hardball they played all along, it’s hard for me to believe they would throw away their last card.
Caro: This is what I keep wondering. They kept talking about the Florida Supreme Court changing the rules after the election. Wouldn’t that be changing the rules after the election?
JT: Well, the Constitution does allow a state legislature to award electoral votes, however…
Caro: Right, but once they’ve decided how those…
JT: It’s never been done to overrule what the voters have done. It would have been a shockingly anti-democratic act, but I don’t know if it’s actually changing the rules.
Caro: But doesn’t Title
3, Section 5 say that you can’t change the rules after the election?
JT: Correct, yes. But I don’t think that would have been seen as changing the rules.
Caro: Sounds like it to me.
I’m not a lawyer, though.
seem to think highly of Judge Terry Lewis and Judge Nikki Clark, who handled
some of the election-related cases, but you have almost no good words to say
about N. Sanders Sauls, the first judge to make a ruling in the case.
JT: I am a lawyer, and I’ve practiced law and I’ve covered courts for a long time, and it is not surprising that in a medium-sized city like Tallahassee, there are some very good judges and some very bad judges. And we saw
Caro: Oh, yeah. He was fantastic.
JT: And just an appallingly bad judge like Sanders Sauls.
Caro: But I have to say this.
He ruled for Bush across the board.
But you mentioned that he did
a favor to the Democrats by not running out the clock, which he could have
done. I wondered something else
at the time. Didn’t he give the
Democrats more oomph to their appeal by his decision, especially not even
looking at the ballots? Could he
have been helping Gore, in a way that kept him from taking the heat from the
JT: I think that probably gives him probably too much credit. I don’t think you can say ruling 110% for one side is really helping the other.
JT: The extremeness of his opinion made the Florida Supreme Court’s job a little
Caro: Okay. Do you know who the Freepers are?
JT: Sure Free Republic. They don’t like me. I have been a big target of theirs.
Caro: Then you do know. Are you aware that they had some sort of convention earlier this year, and that they gave awards to Sanders Sauls and to Katherine Harris for their part in the…
JT: I do know that they invited them to a ceremony, and they had accepted. I think you need to check whether they actually attended, because the Tallahassee Democrat got ahold of that story, and I think they may ultimately have not attended the ceremony.
Caro: Okay, I’ll have to ask on that.
JT: Look into that, I’m not entirely sure.
Caro: Because ordinarily judges and elected officials aren’t supposed to take awards for being partisan.
JT: Well, certainly judges aren’t. Elected officials do, but…
Caro: Well, not if they’re heading up an election
JT: It struck me as an appallingly bad idea for Sauls, but I’m not actually sure that he would up going.
Caro: I wrote to the Ethics Commission in Florida.
JT: Oh, is that right?
Caro: And said this is the craziest thing I ever heard of. We had a campaign going… You say the opinion in Bush v. Gore, the U.S. Supreme Court opinion, “was nothing more, and nothing less, than a decision to award the presidency to George W. Bush.” Vincent Bugliosi and Alan Dershowitz, along with many other scholars and law professors, say that the Bush v. Gore five went against all their principles, and even violated their oaths as judges, to put George Bush in the White House. Do you agree with that assessment?
JT: Well, I think the decision was wrong, and reflected very poorly on the justices in the majority. I think when you start talking about violating oaths and impeachable offenses, I sort of get off the train at that point. But I think this decision will haunt the reputations of the justices in the majority forever.
Caro: I hope so.
JT: I don’t think it’s in doubt. This will be in the first couple of paragraphs in all of their obituaries.
Caro: Now, I want to ask you about something that Judge Richard Posner… Posner…
JT: Posner. Yes, I read his book
Caro: Yeah, you mentioned it at the end of the book. He is one of the few people knowledgeable of the law who has tried to defend the Supreme Court decision.
JT: Well, but interestingly, he defends it… he defends the result. He doesn’t defend the decision.
Caro: Right, and I want to get into that a little bit.
Caro: He says that the Supreme Court performed a kind of “rough justice” because he believed that the Florida Supreme Court had overstepped its bounds by ordering the recount. So, it seems to me that we’re back to “two wrongs make a right”. If you believe that somebody else has broken the law in doing something to you, then you believe that you’re also justified in breaking the law? Isn’t that the essence of lawlessness?
JT: Clearly that can’t be right. Also, his view of the opinion is pretty scathing for someone who supports the result. The Equal Protection clause is a part of the Constitution the justices examine all the time. And for him to say that they got it completely wrong is pretty terrible for the Court, as well. And that he could come up with an alternative is pretty small compensation. I guess the other thing that I find so appalling about the Supreme Court’s opinion is the sentence that I use as the front piece to Too Close To Call, which is their statement that this opinion only applies in this case and is not a precedent for others. That is a truly shocking and cynical statement for an appellate court to make. If there’s one principle that appellate courts are supposed to observe, it’s that their opinions apply generally.
Caro: And Scalia had said that, in a speech not very long before that.
JT: Of course, they all say it all the time. It’s a basic principle of jurisprudence, very decisive. For them to say this ticket is good for this train only really undermines their credibility in anything they say in that opinion.
Caro: Or even beyond, as far as I’m concerned. Another thing you mention that I didn’t know—that Antonin Scalia bullied Ruth Bader Ginsberg by accusing her of using “Al Sharpton tactics.”
JT: Right. This is also, I think, a major disclosure in the book. No one had reported that before. And just to explain what happened is, everyone remembers the Supreme Court voted five to four that Bush’s equal protection rights had been violated. But in the initial draft of her dissenting opinion, Justice Ruth Bader Ginsberg said that as far as she could tell, the only equal protection violation involved black voters in Florida.
Caro: Which is the people that the Fourteenth Amendment was really supposed to protect.
JT: Designed to protect, right.
Caro: How cynical can you be?
JT: And Justice Scalia was so outraged by this that he accused Ginsberg of playing the race card, and engaging in “Al Sharpton tactics.” And Justice Ginsberg was so stung by this criticism that she withdrew that part of her opinion. And this episode just underlines how the Democrats and Republicans were just different. That Scalia was playing to win, and Justice Ginsberg was trying to be polite.
Caro: Right. Or do the right thing.
JT: Well, I don’t even know if it’s the right thing.
Caro: But isn’t that little exchange kind of symptomatic of the entire 2000 presidential campaign, the election, the election aftermath, and what’s still happening in Congress?
JT: Well, that’s just right. It is. That’s why I find that story so interesting. It’s a revealing glimpse behind the scenes of the Supreme Court, but it’s also a good metaphor for the differences between Democrats and Republicans.
Caro: Yes, I love what you say about the Democrats in the epilogue that they have a “gene for unrequited conciliation.” That’s what we activists out here are saying, too. That they keep getting bullied and Mau-Maued. And Bush is pushing through a hard right agenda even though he ran as a moderate conservative. And didn’t even win. And there have been huge payoffs for his supporters and contributors.
JT: And now the Democrats are backing up on Star Wars and tax cuts. It doesn’t even seem to be effective politics for them. I just don’t know why they do it.
Caro: I don’t, either.
JT: I guess it’s just a temperamental thing.
Caro: I don’t, either. I like another sentence in the epilogue, too. You say, “Running away from these fights [we’re talking about Gore] would be admirable only if the accusations against him had merit, but not simply because they were raised.” That’s been a big concern of mine with Democrats. And as I said, even Clinton in his early years, if somebody said something really nasty to him, he just took it back. He didn’t put through the people that he really wanted to appoint.
JT: It’s a difference between Democrats and Republicans.
Caro: Yeah. So thousands more voters went to the polls on November 7, 2000 to vote for Gore than for Bush in Florida. But Bush got Florida’s electoral votes. So what’s our lesson here? Election reform? What’s been done on that front?
JT: The absolute bare minimum that everyone agreed on was that we needed profound electoral reform, that we needed new machines, we needed better procedures. And here we are a year later, and exactly one state in the Union has done anything at all. And Florida, to its credit, I think has done some meaningful reform. But the cause of electoral reform is on a slow boat to nowhere.
Caro: That’s because the Republicans will not support anything…
JT: Republicans have generally acted as if bigger turnouts are a threat to them.
Caro: And they are. They’re right about that.
JT: So more voting and easier voting are not… are anathema to them.
Caro: I’m told that the results of the final, supposedly definitive, study of the uncounted ballots in Florida will be released soon.
JT: Sunday, I’m told.
Caro: You know and I know that the results must show that Gore won. But how do you think the media will play this?
JT: I actually don’t know that. I don’t know what the results will show. I do think that NORC was kind of intimidated into dividing the pie up into such tiny slices that the results are almost certainly going to be ambiguous in one way or another.
Caro: Right. Their job was to categorize the ballots, not to say who won.
JT: Right. But the Republicans were very afraid of a headline that said, “Recount Shows Gore Won,” so they have pressed for such comically meticulous analysis that it’s just guaranteed to be a muddle.
Caro: Right, but they never, ever objected to big headlines saying that Bush won and then reading down in the article and finding out that Gore won.
JT: Right. So I think that the NORC recount will likely, unless it’s really dramatic one way or another, will most likely just persuade people that their previously held positions were correct.
Caro: Yeah, it won’t really clear up anything.
JT: I don’t think it will clear up much.
Caro: Thank you, Jeffrey Toobin. I really appreciate this.
JT: Oh, it was my pleasure.
Caro: Buy his book, ladies and gentlemen: Too Close to Call.