Down & Dirty (63 page)

A West Point grad and former army ranger, Bartlit’s a tough-talking guy who constantly derides what he sees as the overwhelming
amount of bullshit in the world. Fed up with meetings and bureaucracy, he and a few of his buddies—namely Phil Beck, forty-nine—formed
their own firm in 1993, Bartlit Beck Herman Palenchar & Scott, commonly known as Bartlit Beck.

Bartlit and Beck are a pretty big deal, known in the legal community and among corporate America, if not household names with
the rest of us. They defend big corporations, and they do so successfully. They’ve been real innovators in the use of technology
and visuals and computers in the courtroom. They don’t bill by the hour—they get incentives if they win.

And win big they do. In
The National Law Journal
’s list of the hundred most influential lawyers in 1997, Bartlit was described as “personally one of the most successful corporate
defense litigators ever, with a long history of big wins.” These include victories for Amoco, Dun & Bradstreet, Monsanto,
and United Technologies. He’s been there for DuPont on patents, National Lead on claims of paint-chip injuries to kids, GM
on everything under the sun. He and Beck repped Alpha Therapeutic Corporation—a company that made blood-clotting medicine
through which hemophiliacs were said to have contracted HIV.

They’re big guns for the bad guys, as are most successful lawyers. Bartlit and Beck are just a bit more successful than most.

Neither claim to be conservative Republicans, however. And if you ask Bartlit about his clients, he’ll immediately shift the
conversation to his representation of the Sierra Club in 1981 in its suit against the utilities running the Four Corners,
New Mexico, coal-fired power plant that discharged sulfur dioxide into the air. He’s about to take on the tobacco industry
on behalf of the Canadian government. If you ask Beck, he’ll mention his representation of an African-American Chicagoan in
his suit against the cops who wrongfully imprisoned him.

As for their feelings on the presidency, well, both pulled the lever for Bush in November. Beck thinks that Gore’s “a creep,”
that he has “an unhealthy obsession with wanting to be president; his whole life’s been defined as to whether he’ll achieve
Mommy and Daddy’s dream.” But neither Bartlit nor Beck voted for Bush in the Illinois primary. They were among the 22 percent
of Republican voters in that state who voted for Bush’s nemesis, McCain, despite the fact that the Arizona senator dropped
out of the race two weeks before.

Bartlit arrives in Tallahassee the morning of Sunday, November 19, and he gets to work on the overseas military absentee-ballot
case. Over the course of the week, he calls Beck, tells him that it looks like there will be a contest filed, after which
things are going to move very fast, around the clock, like the hostile takeover cases Bartlit and Beck have worked on before.
For that, Bartlit says, the Bushies will need more than one trial lawyer.

“I think it would be the kind of thing that would be perfect for you,” Bartlit says to his young partner. He has a fatherly
pride for Beck, whose headstrong, occasionally idiosyncratic ways weren’t as beloved at Kirkland & Ellis as they are now.
“If you want to come, I’ll recommend they bring you down,” Bartlit says.

But by Thanksgiving Day, Beck hasn’t heard a word. Before he heads off to his sister’s house for dinner, he sends out the
following e-mail:

Since I haven’t heard from anyone, I assume we have not been put in charge of whatever contest occurs and/or that I’m not
needed in Florida. If someone needs to talk to me this weekend, I will have my cell phone with me and turned on most of the
time. Skip and I are proud of all of you for helping to elect our next President.
^*

Beck assumes that the decision has been made, but he brings his cell phone, which he seldom does.

It’s a mixed crowd at his sister’s—Beck’s mom and sister and one of his sons voted for Gore, while he, his wife, brother-in-law,
and other son were Bush-backers. Everyone’s talking about the election, getting lawyer Phil’s take on it all. He hasn’t told
them about the fact that he might even be called to come down.

Soon enough, the phone rings, and Bartlit tells him that the Gore lawyers have just announced that a contest is going to be
filed. Beck doesn’t
quite know what that is, but he’s on the program, he tells his family—“they all instantly became Bush supporters,” he later
says—and at the crack of dawn on Friday morning, Beck’s on his way down south.

By going for the best lawyers he can find, period, and not just going after Bush loyalists, Baker makes a very shrewd decision.
Though initially, when Bartlit is chosen to represent Bush in a suit against fourteen Florida counties for not counting certain
overseas military absentee ballots, some of the Bush loyalists—Ginsberg and Terwilliger, primarily, as well as tons of political
folks—have their doubts.

Accompanied by Summers and Unger, Bartlit presents his case on Friday, November 24, before Judge Ralph “Bubba” Smith. Beck
is in the stands, fresh off the plane in jeans.

Bartlit knows that however strong the overseas military absentee-ballot case is politically, it has limited potential legally.
There are, for example, serious questions about venue—whether they should be dragging fifteen counties to a Tallahassee courtroom
instead of filing in fifteen different county seats throughout the state. There are also possible procedural problems on the
matter of the law; the issue has never been resolved before. No one would say they had a great case. But, Bartlit and Baker
Botts partner Kirk Van Tine had decided, something has to be done. The Democrats might have retreated from the Herron memo,
but military votes still weren’t being included. The Bushies estimate that about 500 ballots were rejected for technicalities
that they claim they can argue against, such as lacking a postmark. By using the confusion about whether an absentee ballot
has to have a postmark—or if, lacking a postmark, since it’s sent from a ship or whatever, it’s enough that it’s signed and
dated—the Bushies will try to shake out every single absentee ballot they can. Some Bush pols repeat arguments to reporters
that they don’t intend on making in the courtroom: they want military ballots given every possible benefit of the doubt. They
want ballots bearing postmarks that are unreadable to count. And, heck, not just the unreadable; they want
post
–Election Day postmarks to count!

How much of this is rooted in the conference call on or around Veteran’s Day, November 11, is impossible to say. Who on the
Bush team knows about that conference call? Also impossible to say. But the legal maneuvers in today’s courtroom will do a
great deal to further the cause to get ballots that have been cast after Election Day—however many there are—counted.

When Bartlit walks into the courtroom, he expects to see Gore lawyers there, to argue on his side that these ballots should
be counted—the argument that, after all, Lieberman made on TV. But they’re not there, which Bartlit finds a bit sleazy. Nor
are they there to argue the other side of the matter, which Bartlit finds disappointing, since he has a computer file full
of graphics and Lieberman quotes arguing the Bushies’ side on this. Oh well, he thinks. That the Gore lawyers haven’t entered
the case and aren’t helping out the canvassing boards will be good—it increases the likelihood that the canvassing boards
will start caving.

Not that they don’t have an argument.

Since the point is to get Bush votes, right off the bat Bartlit dismisses the Bushies’ suit against Clay County, which then
takes the 17 absentee ballots it rejected last week and accepts 14 of them. Twelve of them are for Bush.

The lawyer for Bay County asks Bartlit if the Bushies are going to dismiss their suit against his canvassing board, too, since
the board members just reconsidered 12 absentee ballots, resulting in a net gain of 2 votes for Bush. But that’s not good
enough. “We still have differences with Bay County,” Bartlit says. And Escambia, Dade, Okaloosa, Collier, Leon, Pasco Counties,
etc., etc.

The list goes on. Fred Bartlit wasn’t brought here to make it easy.

A comprehensive analysis of the GOP’s fight for the inclusion of overseas absentee ballots shows that it’s based more on the
desire for Bush votes than any concern for the rights of Americans serving their country abroad. One case in point: Broward
County discarded only 6 overseas absentee ballots because they lacked postmarks. Still, GOP lawyer Craig Burkhardt of Spring-field,
Illinois, argues vociferously that Lee and the board include them.

Lee is already suspicious of Burkhardt,
^*
who is clumsily obvious about his partisan intentions. For example, Burkhardt wants to see where the postmark on the envelope
is from before he decides whether or not to argue in favor or against an absentee ballot’s inclusion.

“You can’t do that,” Lee would say to him.

During this week, when absentee ballots are being reconsidered, the Broward County canvassing board learns that 4 of the 6
absentee ballots rejected because they lacked a postmark were without such because they’d been delivered to D.C. in a diplomatic
pouch. Two were from the U.S. Embassy in Bulgaria, two from the embassy in Fiji.

You have to count them! Burkhardt ordered Lee.

OK, so they did.

Four Gore votes.

Two days later, Lee opens a letter from Sullivan & Boyd, a Republican-affiliated law firm in Jacksonville.
Somehow
this firm found out about the 4 votes. And G. J. Rod Sullivan, Jr., representing GOP voters in Nassau and Duval Counties,
asks “that the Board revisit its decision to accept these ballots,” or else his clients might take the canvassing board to
court, for a contest proceeding to disenfranchise these overseas voters.

Lee just shakes his head. Unbelievable, he thinks.