Down & Dirty (82 page)

When it’s time for Kendall Coffey’s cross-examination of Spargo, he doesn’t waste any time brandishing the blade.

“Good afternoon, Mr. Spargo, I’m Kendall Coffey, one of the attorneys for the vice president and senator. As I understand
it, part of the thrust of your testimony this afternoon is to, in effect, discredit, if you can, the reliability and integrity
of some of the processes that were used by Supervisor Leahy and the staff, correct?”

“I only testified, I believe, to what I observed but I, all right—”

“Isn’t it
true,
” Coffey asks, “that the last time you were on the witness stand on matters of reliability and integrity in an election scenario,
you took the Fifth Amendment nineteen times?”

Terrell’s on his feet even before Coffey’s sentence is completed. “This is what you call your basic bushwhack,” Terrell says.
“He knows it’s not proper. He’s coming in to embarrass him, and I suggest he tender whatever evidence he’s got. I think it’s
irrelevant.”

“Your Honor, I have background information which I think goes to the reliability of the witness,” Coffey responds.

Sauls calls the attorneys back to his chambers to talk about this.

Spargo’s a New York GOP hack, counsel to lame politicos with short shelf lives, like Lt. Gov. Betsy Ross and Republican-turned-Democrat-turned-unemployed
congressman Michael Forbes, back in Forbes’s first incarnation. In the Empire State, Spargo’s known for trafficking in the
ridiculous, like a 1990 lawsuit against then-governor Mario Cuomo for claiming his family’s Queens home as his voting residence,
though the governor, of
course, primarily resided at the governor’s mansion in Albany. Or his 1998 suit on behalf of defeated attorney general Dennis
Vacco against newly elected Democratic attorney general Eliot Spitzer, in which Spargo alleged, but never remotely proved,
that fifty thousand illegal aliens voted on Election Day. He’d been counsel to the state GOP until he resigned in 1990 under
investigation of an ethics commission. This involved the role, if any, that he played in a 1985 campaign-financing scandal
that funneled cash from the developers of a Poughkeepsie mall to local officials. After Spargo failed to submit to questions
about the alleged political payoffs, a state supreme court justice issued a warrant for Spargo’s arrest. This was lifted when
Spargo agreed to testify before a State Commission on Government Integrity investigation, though his testimony was hardly
forthright, as he did, indeed, invoke the 5th Amendment nineteen times.

In a trial held on a normal schedule, it’s likely that neither Hengartner nor Ahmann, nor Brace, nor—especially—Spargo would
have been called to testify. But this is fast-track, baby.

Sauls, Coffey, Terrell, Richard, and Klock spill into the hallway behind Courtroom 3-D.

Terrell is furious. He notices the conspicuous absence of Boies and Douglass.

“We believe that this witness is subject to impeachment,” Coffey says, outlining Spargo’s sketchiness, most notably the times
he pleaded the 5th Amendment.

“Might I ask counsel a question?” Terrell fumes. “When did this occur?”

I think it was ten or eleven years ago, Coffey says.

“Was he convicted of a crime?” Klock asks.

“It’s showing a propensity to refuse to provide candid testimony in matters involving elections,” Coffey says.

“As counsel for Governor Bush,” Terrell says, “at least in the state of Texas—Mr. Richard and Your Honor will speak for the
state of Florida—that’s not admissible.” Since he was never convicted of anything, certainly not of a felony, and this all
happened more than ten years ago, none of it is admissible in a court of law.

“It’s the same in Florida,” Barry Richard says.

“It’s improper,” Klock says. “I’m surprised.”

Sauls sustains the objection.“Anything further as to that,” he says to Coffey, “and we’re going to have a hearing on contempt
tomorrow morning.” Sauls marches back to the bench.

“And if there’s anything else like that,” Terrell warns him, “
I’ll
move for contempt on you.”

Coffey shrugs. “You’ve gotta do what you’ve gotta do.”

“Listen to me, counsel,” Terrell whispers. “You will be damaging yourself if you continue. What you heard out there and in
here is mild compared to what I’m going to say about you if you keep going like that.”

They reenter the courtroom. Terrell approaches Spargo and whispers to him. “He will not be asking you any more questions like
that,” he says. “You’re doing great, you’re doing well as a witness. Keep hanging in there.”

Then: “Tom, there’s something I must know, and you must tell me: is there anything else?”

“Irv, I’m so sorry I didn’t tell you before,” Spargo whispers, repentant.

“I know,” Terrell says. “But I must know, you must tell me.”

“No, that’s it,” Spargo says. “I’m so sorry.”

But Coffey’s not done yet. He has a photograph of Spargo actually demonstrating—clapping and chanting—at Miami-Dade on Wednesday,
November 22. He asks him about various hypocrisies of GOP tactics in Miami-Dade—that Martinez tried to get a court order to
stop the separation of undervotes from the rest of the pack, for instance, and only days later, Republicans protested when
the canvassing board went to the nineteenth floor to separate the undervotes that hadn’t yet been separated.

Richard leans over to Terrell, who’s still enraged, and tells him about the stripper Coffey bit back in ’96. Terrell is horrified.
He looks at Coffey like he’s an animal. Terrell becomes worried that he’s so mad, he’ll say something about Coffey’s incisors
to the court, or to the press. But he doesn’t.

Soon enough, Coffey’s done with Spargo. Terrell, of course, does not take the opportunity to ask him any more questions.

When his rage subsides, Terrell will wonder why Coffey raised the issue in such a clumsy way. He could have pointed out that
Spargo is the only one who supposedly saw the thousands of chad spilling out, pointed out that the court is being asked to
take Spargo’s word for it. He could have talked to him about his word, about how a man’s word relies upon his ethics, principles,
and beliefs, asked him if he’d ever been accused of being unethical. Then Spargo would either have had to admit it or lie
about it, and Terrell would have had to object, putting an end to it with the world—and Sauls—perhaps believing the worst.

Not only was Coffey’s tactic unethical, Terrell thinks, it was bad lawyering.

During a break, the Bushies regroup a bit. Beck approaches Terrell.

“You know, not everything goes perfectly,” Beck jokes. “Sometimes your guy endorses hand recounts,” he says.

Terrell smiles. “Sometimes he pleads the Fifth Amendment.”

Bartlit feels that he has a bang-up case on Broward to present, but Ginsberg and Terwilliger want to end it. They don’t need
to push for much more of a case, they don’t need to put on many more witnesses.

Bartlit disagrees. He’s gonna roast Gunzburger. And Lee, to a lesser extent. He has damning quotes of Gunzburger talking about
voting her conscience instead of a standard, and he has Rosenberg ready to assail her. Plus, Bartlit says, if they lose in
the Florida Supreme Court, they should be prepared to put the Broward ballots back in play. But even Beck thinks that they
should quit while they’re ahead. The Gore case is weak. The Bushies are winning. Who knows how many Ahmanns and Spargos are
lurking in their witness lists?

The last quarter or so of the trial is full of quiet and minor developments. Marc Lampkin gives his testimony, alleging that
when Leahy and his team began sorting out the undervotes on Wednesday, the ballots were damaged.
^*
And, as one member of the Bush legal team later tells me, Lampkin, an African-American, is also there to show the country
that the GOP isn’t entirely made up of white Presbyterians.

Twenty-year Nassau County supervisor of elections Shirley King comes next; none of the Gorebies want to cross-examine a sweet
little old lady, so Dexter Douglass gets the job. He already knows the Nassau case is hopeless—he told Boies as much after
reviewing the facts. “They’re not going to throw those ballots out,” he said. “I hope you didn’t really bet your law license
on this one.”

Soon the Gorebies try to introduce the ballots as evidence. Terrell objects. The ballots have been through all sorts of “reshuffling,”
he says. And the Gorebies never even proved “through any witness the authenticity of those ballots, they didn’t call Supervisor
Leahy, they didn’t call anybody from Miami-Dade to actually put those ballots before Your Honor in an appropriate way.”

Sauls agrees that the reshuffling argument is understandable if the Gore team wants to argue for the ballots’ “utilization”—that
is, to count them,
to handle them, to show that there are votes in them thar boxes. But to admit them into evidence isn’t that big a deal. A
few of the “real people” intervenors get up and speak; Hengartner returns to try to clear his name, but rebuttal testimony
isn’t supposed to be about “rehabilitat(ing) your witness that has been impeached,” Klock objects.

Soon—
YAWN,
it’s like 10
P.M.
—it’s time for closing arguments. Douglass thanks Sauls for the expeditious way he ran the case—finishing up even before Zack’s
schedule would have had them done—and Boies stands up, one last chance to work his magic before the skeptical judge.

He’s a fascinating guy, occasionally mesmerizing in the legal arena, just as a gifted thespian, or talented tennis player,
can be. But his case has not felt, at least to me in the stands, all that strong. Hengartner and Brace were duds; disgraced
in one instance, discredited in the other. Sauls has seemed underwhelmed by the Boies magic that has worked so well on us
in the media and on judges like Thomas Penfield Jackson in the Microsoft case. And whether or not Boies Klain is shooting
for the Florida Supreme Court as an endgame, the Sauls case is important both for PR purposes as well as to establish a record
that the SCOTUS and its frisky conservative justices—like, say, Scalia—might want to poke around in.

It just doesn’t feel like they’ve made their case. Not even a bit. And the fact that they never tried to get all 175,000 undervotes
and overvotes counted has caused a complete erosion of support for the “count every vote” charge among reporters, many of
whom would like to know who actually won the presidency, as crazy as that sounds.

Instead, Boies talks about Nassau County, hoping to make the convincing case that Douglass never managed. “The statutory direction
is that when you have a discrepancy, you pick the mandatory machine recount” number, not the count from Election Night. The
Nassau canvassing board could have recounted the ballots again; it didn’t. It just relied on what
Harris
of all people told them to do.

“The court heard Judge Burton, called by the defendants, testify that they had been able to identify the clear intent of the
voters,” Boies says. “There is no evidence in the record that suggests that those two hundred fifteen votes are not legal
votes that need to be included.” The fact that they were two hours late is no reason to keep them out of the final vote tally,
he says. Of course, they weren’t two hours late, they were actually three days late. And there weren’t 215 net Gore votes
from Palm Beach, there were 174.