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CNN Late Edition

When Will America Know Who its Next President Will Be?

Aired December 4, 2000 - 12:12 p.m. ET


WOLF BLITZER, HOST: Joining us now for an abbreviated edition of our LATE EDITION is the man heading Al Gore's recount effort, the former secretary of state, Warren Christopher.

Secretary Christopher, thank you for joining us.

And I know you've been monitoring all of these development, but I want to get to some of the news that's been happening earlier today. The Republican vice presidential candidate, Dick Cheney, was on "Meet the Press," and he had some advice for Al Gore.

Listen to what he said.


DICK CHENEY (R), VICE PRESIDENTIAL NOMINEE: I do think that it's time for him to concede. So far, he's chosen not to do that, to pursue other avenues, and clearly that's his prerogative. But I think long term, I think history would regard him in better light if he were to bring this to a close in the very near future.


BLITZER: Dick Cheney telling Al Gore it's time to concede. What do you say about that?

WARREN CHRISTOPHER, GORE CAMPAIGN ADVISER: Wolf, you know, Adlai Stevenson once said, "A wise man does not to hurry history." I think what Secretary Cheney is doing is trying to hurry history along.

These are late innings, of course, but the contest has many turns to go. There are three judicial proceedings that are very relevant: the Supreme Court proceeding, which was last Friday, we'll be getting a decision there; the proceeding that all your viewers are watching, there in Tallahassee County, could have a very important result in whether or not the nonvotes are actually counted; and finally, there is the proceeding involving Seminole County and Martin County, which could have a very decisive result.

So I think it's far too early to think about conceding. In my own experience in these matters, Wolf, when in a contest like this, I've always tried to open myself to the possibility that the other side might win. CHRISTOPHER: And I think it'd be very healthy if Secretary Cheney and the Governor Bush team would at least admit of that possibility. It would make for a better long-term relationship, I think.

BLITZER: Secretary Christopher, the Republican vice presidential candidate, Dick Cheney, is not alone in offering that advice to Al Gore. There is a new Newsweek poll that's just out today. Should Al Gore concede? 53 percent of those who responded say yes, 44 percent say no. Those trends have been increasing lately some of those polls. Is that a source of concern to you and to Al Gore?

CHRISTOPHER: Well, I'm sure there is a lot of frustration on the part of a number of people that want to have this over with. On the other hand, Wolf, I think it would be really tragic if we found at some later time that Al Gore had actually won in Florida, and we hadn't taken the time to get it right.

So I think the American people have shown an unusual patience. Even the poll you mentioned is very evenly divided. We're not talking about a long period of time. We're talking about a relatively short period of time, and I think it is well worth it to make sure we get it as right as we can.

BLITZER: Secretary Christopher, one of the proceedings that you refer to, the proceedings in Seminole County: The Gore campaign is not directly involved in that, that was brought by some local Democrats, and it questions absentee ballots that were improperly filled out -- the application forms, not the ballots themselves. Perhaps as many as 4,000 or 5,000 votes could be lost for George W. Bush if the judge says that it was improper illegal activity.

The question that I want to ask you is, you've been saying and Al Gore's been saying every vote should count. There is no question that those voters in Seminole County wanted to vote for George W. Bush. It was a mere technical problem that, perhaps, could result in those ballots being disqualified. And some Republicans are saying that you are being hypocritical by dealing with, what they call, these hyper- technicalities.

CHRISTOPHER: Wolf, that case was brought by citizens of Seminole County, and now I believe Martin County. They certainly have a right to bring that. And I haven't heard anybody say that there was not an illegal action taken by the Republican forces there.

After the absentee ballots came in, they went in and took action with respect to those ballots, by filling in the voter registration number. So as I say, I haven't heard anybody say that that's not illegal. That proceeding will go forward.

We've chosen to concentrate on trying to get all the votes counted in Miami and Dade County where the Votomatic machine was used. But, nevertheless, that case is proceeding forward. A judge will act on it next week, presumably. And I think that case needs to be taken into account. BLITZER: You know, as we're speaking, this hearing in Tallahassee -- the whole issue of these recounts is going forward. But a lot of people are suggesting that the clock is clearly ticking, ticking against Al Gore. As this goes into its second day now -- it was originally supposed to be one day -- isn't time running out before that December 12th deadline?

CHRISTOPHER: There is no doubt the clock is ticking, and that's why the lawyers for Al Gore have been pressing to bring this matter to a conclusion.

The viewers can watch, and I think they probably know what's going on here. The lawyers for Al Gore, headed by David Boies, have been trying to bring this matter to a conclusion so the judge can act. On the other hand, the lawyers for Governor Bush have been prolonging the matter, now into a second day, with the fourth witness for them, when we limited ourselves to two witnesses.

So, yes, the time clock is ticking, and that is why we are trying to bring the matter to a conclusion so the judge can rule. Presumably, after that, either party may appeal to the Florida Supreme Court.

BLITZER: And can we assume, if the judge rules against Al Gore's position in this circuit court, that you will immediately seek an appeal before the Florida Supreme Court?

CHRISTOPHER: Well, of course, we'll have to view his ruling, but I think that's a fair presumption.

BLITZER: And there is no guarantee, though, that the Supreme Court is going to go along with you. Remember, the last time they considered this matter, they said the highest priority was making sure that Florida had electoral votes in the Electoral College, and they're very, very sensitive to that December 12th deadline.

CHRISTOPHER: I understand their sensitivity very well. On the other hand, they have indicated an open mind to reconsidering our appeal after this proceeding is done. So I think they are wanting to preserve enough time so they can take action. I'm sure they are following the matter very closely. They have shown that all through the last three or four weeks.

BLITZER: As these last few days -- as you've been monitoring all of these legal developments, including the Supreme Court hearing on Friday, the continuation of this trial over this weekend in Tallahassee, Governor Bush has been moving forward with some of his transition plans, and he even had a conversation with a few Democrats, including Senator John Breaux of Louisiana, to discuss possible bipartisan cooperation, perhaps even bringing some Democrats into his cabinet. Is that appropriate at this stage?

CHRISTOPHER: I think I would divide into it two pieces, Wolf. I certainly do not fault his moving forward with transition plans. That's prudent. Certainly, Vice President Gore is doing the same thing. I think that you get to the point where you may go over the line there, if he presumes and begins to act like the president. CHRISTOPHER: As I said earlier, I think it's very prudent for both sides to take into account that they might ultimately lose.

It's interesting to note, Wolf, that the vice president's popular vote continues to increase. It's now well over 300,000. There's still much to be done in Florida, so I think it's quite useful to both parties to remember that they might lose.

BLITZER: But you have to concede the popular vote is really irrelevant at this point; it's the electoral vote that makes all the difference in the world.

CHRISTOPHER: Of course, and the vice president has basically indicated he will abide by the electoral count.

But once again, I think we need to remember how terribly close, excruciatingly close, it is. Because if even Governor Bush wins Florida, he'll only have 271 electoral votes, only one over the magic number.

BLITZER: Obviously, that one electoral vote could be decisive.

Senator Patrick Leahy was one of those who heard the arguments on Friday before the U.S. Supreme Court. Afterwards, he came out and said that if there's a decisive decision by the Supreme Court, it probably should be the end of the game as far as Al Gore is concerned. I want you to listen precisely to what Senator Leahy had to say.


SEN. PATRICK LEAHY (D), VERMONT: If they made a definitive ruling, something like we saw in Brown v. Board of Education, something you saw in the Watergate tapes, then that is the final -- that is the final word.


BLITZER: If the Supreme Court does that and rules against Al Gore, is that the final word?

CHRISTOPHER: Well, it depends upon how they rule, Wolf. I was sitting in the courtroom that day, too, and saw Senator Leahy there. And no doubt the Supreme Court does have the power to take a very decisive action here. But even if they should rule with Governor Bush's team and set the date back to the 12th of November, that would not finally end the matter. I must say, in reflecting on what's happened since Friday, and reading the opinion yesterday, I'm more optimistic now than I was then.

And second, I think I'm somewhat more inclined to think the court may find a way to conclude that the action sought by Governor Bush here was premature, and not act on the matter.

Now, none of us knows exactly how the court proceeding is going to come out, but the likelihood is, I think, that it will permit Vice President Gore to continue to press his effort to have all the votes counted in Florida.

BLITZER: Finally, Secretary Christopher, one wild card: One almost insurance policy that the Republicans do have is the Florida legislature. As you know, the U.S. Constitution, Article II, Section 1, does stipulate the following. It says: Each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the number of senators and representatives to which the state may be entitled in the Congress.

Do you have any doubt, any question, that if the Florida legislature, getting close to December 12, decides that their electoral votes are at jeopardy, they will go forward and name their own obviously Republican electors, given the vast majority that the Republicans have in both the Florida Senate and House?

CHRISTOPHER: Wolf, I think that would be a very bad wild card to play. I can't imagine anything more divisive than the Florida legislature, a Republican-dominated legislature, with a Republican governor, taking action to overrule the voters of Florida, or to put themselves in the place of the voters of Florida.

It's of questionable legal correctness, but much more important is the policy aspects of it. I don't think that either Governor Bush or Vice President Gore should want to have that result, and I hope they won't go that direction.

BLITZER: Secretary Christopher, I know it's been a difficult several weeks for you, but thanks for joining us on this abbreviated LATE EDITION.

CHRISTOPHER: Thank you, Wolf.

BLITZER: Thank you.

And just ahead: What is the Texas governor's next move in the courts? We'll talk with Bush campaign attorney Theodore Olson, who argued his case before the Supreme Court, when LATE EDITION continues.


BLITZER: Welcome back to LATE EDITION.

We're continuing to monitor the trial in Tallahassee. We'll be getting back to that shortly, but right now I want to talk to a man who's been heading Governor Bush's legal arguments here in Washington, Theodore Olson; he argued the case before the Supreme Court for Governor Bush on Friday.

Mr. Olson, thank you for joining us.


BLITZER: Six million votes, almost six million votes were cast in Florida; there's a difference of 537 votes. A lot of people out there say, what's wrong with spending a few more days and making sure that some of those disputed ballots, or all of those disputed ballots, are counted, so that the country knows now, not six months from now or a year from now, who actually did win the majority of votes in Florida.

OLSON: The problem is they've been counted, and they've been recounted, and they've been subjected to this other process. Each process, the handling of these ballots, degrades the ballot themselves. We're talking about counting ballots, some ballots in some counties, not counting other places. We're talking about counting indentations, which we don't know where they came from. This ballot process has been that the votes have been counted and the results are in. We can't keep doing this process; these ballots change in the process.

BLITZER: Well, you know, some would say that that's a hypocritical position, some of your critics would argue. And they would point, for example, to a story in The New York Times today, that Republicans in New Mexico -- because Vice President Gore carried that state, by what, 368 votes out of nearly 600,000 cast -- now the Republicans in New Mexico are asking for a hand recount to make sure that that is accurate.

OLSON: But what has happened in Florida, is there's been compliance with the Florida law for the process of counting, and counting the votes in a proper way. Then we've extended the deadlines, we've changed the process. The problem in Florida is that the rules change with respect to the counting of these ballots every single day.

Your viewers have been watching this process on television. They know that on the first day, they were counted a certain way, and in subsequent days, standards changed, standards are different from county to county. Some counties aren't going to be recounted at all. It's a chaotic process which, if the process had stuck to the rules, as they were written before the election, it would have been over with, and we wouldn't be going through this process today. And we now have -- I think someone told me 40 some lawsuits going on down there. Is that a good system? I don't think so.

BLITZER: Well, you know, the Gore supporters would argue, it could have been resolved by now, but it was the Bush legal team that put all the roadblocks in the way of going forward with a orderly kind of manual recount.

OLSON: Well, I think that most people who have been watching the process know that that's not the case. The deadlines have been shifted; we've gone three weeks rather than one week into the protest phase of this election. Now we have the contest phase of this election, which has been arbitrarily shortened because of the positions that the Gore administration -- or the Gore campaign took, and we've got a very distorted process because we did not stick to the neutral principles and carefully developed timetables that existed before the election.

So we're playing the game, so to speak -- it's not a game, it's a very serious thing, but every American knows that if you go into a contest knowing what the rules are, you can't start changing them in the midst of the process; it's very bad.

BLITZER: You've probably seen by now -- I think everybody's seen by now -- The Miami Herald story lead story in today's paper. What if the vote were flawless? The Miami Herald doing what they described as their independent analysis of all of the votes, and they concluded that if there was a fair count, Al Gore would carry Florida by 23,000 votes.

OLSON: It reminds me of the -- Johnny Carson used to hold up the envelop, and then guess what the answer was. They couldn't possibly have counted all those votes. They couldn't have been talking about other counties, they don't -- no one knows what these indentations mean.

And so that story, it strikes me as being borderline irresponsible to say that what the results would have been. They have not counted those ballots, and so they're discerning through some sort of magic what the outcome could have been.

Someone else will come along tomorrow and write another headline saying it should come out the other way. These votes were counted -- the ballots were counted according to the standards set before the election, and the outcome has been the same. Governor Bush won this election. He's been certified as having won the election, and we have a process now of -- yes, it was a close race, but every time there's a close race, you can't reconfigure the process and do things over again so until it comes out your way; it just doesn't work.

BLITZER: You heard Secretary Christopher and a lot of other Gore supporters suggest that what you're trying to do now, the Bush legal team, is play out the clock. Get it to December 12 so that the Florida electoral votes will automatically go to George W. Bush.

OLSON: I was very disturbed to hear him say that. It's the Gore campaign that pushed the process back by three weeks, so that this process had to start. Their contest had to start just this week because they didn't start as early as they should have.

Now, because the Gore -- the Bush team is putting on a couple of witnesses that explain how this process works, Secretary Christopher is complaining about that. It's -- I don't understand how he can possibly say that. All they're doing in Florida, the Bush team, is making sure that the judge understands what a crazy process this recount system is. Trying to divine the intent with microscopes of each ballots? It doesn't work.

BLITZER: Explain what the -- if it's such a crazy process, if the Gore team does get another recount, a manual recount, in some of the counties that they have been seeking those disputed ballots to be counted, Palm Beach County, Miami-Dade: Now the Bush campaign is asking for a recount in Broward and Volusia counties, a manual recount, if the Gore appeals succeed.

OLSON: Well, that's like saying lets let's replay the play that is favorable to us, until it comes out our way, but let's forget about the rest of the game. I mean, all they're saying down there ... BLITZER: So you would like a recount?

OLSON: ... No, what we are saying down there. In the first place, Florida doesn't have a system that works. There's different standards in different counties. Everyone will admit that there is no continuity at all. All we are saying down there, as I understand it, is that you can't take a slice of it, recount it until it comes out your way, and then ignore the rest of the contest. That is not fair. That doesn't make any sense. That is all we are saying.

BLITZER: So if Gore does win these court battles to get more manual recounts, you will seek other counties to have manual recounts there as well.

OLSON: I think what they are saying is, don't do this because it doesn't make any sense to do something that is already been done, and doing it in an unequal way, that disenfranchises to the extent that you might have that process take place, it disenfranchises voters in the rest of the state. It's a crazy process. Don't go there.

Furthermore, there is not time. Elections, especially federal elections for president, have to be done after a certain period of time. You can't continue this process interminably. We have to go on with the governance of this country, and that's very important to the people of this country.

BLITZER: Now you and your Democratic colleague, Larry Tribe, were grilled by those nine U.S. Supreme Court justices on Friday; the whole world was listening to that audiotape. What happens if the U.S. Supreme court says, you know what, the Florida Supreme Court did not exceed its authority; it came up with a fair conclusion. What happens to the Bush case at that point?

OLSON: The Bush case, Governor Bush has won the election, even under the Florida Supreme Court standard. The certification of the election took place November 26. Governor Bush was ahead, even by that count. Governor Bush will be certified as the victor in that election. All then we have to wait for is for the Gore campaign to stop all of these lawsuits that drag the process out.

So either way, whatever happens in the Supreme Court, Governor Bush has been certified as the winner in the Florida election.

BLITZER: So why isn't the U.S. Supreme Court, the whole issue, moot?

OLSON: It isn't moot because the contests are still going on. There would be a different margin of victory, which could conceivably make a difference with respect to these contests that are going on in Florida that your viewers are watching. There is a certification process that gives a presumption of validity of certain counts. So there could be an effect: We could be better off, but we can't be any worse off, depending upon the Supreme Court decision.

BLITZER: There was a dramatic moment, and I'm sure you remember it much better than I do, when Justice Ruth Bader Ginsburg questioned some of the remarks that have been coming from your side. I want you to listen to what she said, and I want to discuss this, briefly. Listen to Justice Ginsburg.


RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE UNITED STATES: I do not know of any case where we have impugned a state Supreme Court the way you are doing in this case. I mean, in case after case, we have said we owe the highest respect to what the state says, state Supreme Court says, is the state's law.


BLITZER: I think what she was referring to were some of the comments that James Baker, and even Governor Bush himself, made in the aftermath of that Florida Supreme Court decision. I want you to hear this excerpt from James Baker, who is running the legal team in Florida for Governor Bush. Listen to what he said about the Florida Supreme Court decision.


JAMES BAKER, BUSH CAMPAIGN ADVISER: All of this is unfair and unacceptable. It is not fair to change the election laws of Florida by judicial fiat after the election has been held. It is not fair to change the rules and standards governing the counting or recounting of votes, after it appears that one side has concluded that is the only way to get the votes it needs.


BLITZER: You're an officer of the court. How uncomfortable did you feel hearing that kind of hammering at the Florida Supreme Court, the highest court in the state of Florida?

OLSON: What he was saying -- and we have said it in our briefs, and we said it respectfully in our briefs, and we repeated that to Justice Ginsburg when she asked this question -- we are not questioning the integrity of the court. We are saying that the court went far afield. It set aside the rules that had been established by the legislature for the conduct of the election, before the election took place. It threw those rules out. Anybody who reads that opinion will know that those rules were changed, the timetables were changed.

And we were saying that the Constitution of the United States says that each state shall appoint in such manner as the legislature thereof shall direct, the manner of counting votes and resolving disputes. What disturbed us about what the Florida Supreme Court did, with all respect to the justices of that court, is that they changed the rules in the middle the contest. That is not something that you or I or anybody would be comfortable with. You can't rearrange the rules so that your person might come out in a better way.

OLSON: Neutral principles established before the contest can be fair, because each side doesn't know how they will apply to them. But if you know afterwards how close it is and how simply could you change a simple rule and make it come out differently, that leads to the temptation that we are seeing exercised down there: subjective evaluation of ballots, inconsistent standards, changing rules. Outcome-directed process is not fair, and it won't be accepted by the American people.

BLITZER: OK, Theodore Olson, thanks for joining us. Now we know why you made the case for Governor Bush before the Supreme Court.

OLSON: Thank you, Wolf.

BLITZER: Appreciate it very much.

We're going to get back to that trial in Tallahassee right after this. A lot more going on, thanks for joining us.


BILL HEMMER, CNN ANCHOR: Once again, I'm Bill Hemmer, live in Tallahassee.

We have left that hearing, the contest hearing here in Leon County for about 25 minutes time. Briefly, bringing you up to date on the stand now is John Ahmann, a witness for the Bush team.

When we last left off, he was testifying about how chad and ballots can be damaged when humans handle them. He was also talking about the theory about chad buildup.

Now Steven Zack (ph), an attorney for the Gore team, for the past 25 minutes gets his shot at the witness, John Ahmann.

Back inside now -- Steven Zack doing the questioning.


HEMMER: Lunch break just a bit earlier today, about 30 minutes earlier than yesterday. But Judge Sauls calling that lunch break that will extend at least 35 minutes to 1:30 local time.

Again, throughout the morning here we have heard from two witnesses, both called by the Bush attorneys. We'll talk with our attorneys about what we have seen and heard thus far today and again what we may anticipate later today back here in Leon County.

For now, a quick time out.

Back with more after this.


HEMMER: Once again, the contest hearing has broken for lunch today on this now Sunday afternoon. And while we get a time pout in the courtroom -- we do anticipate them back possibly at 1:30 local time. which is a bit more than 30 minutes from now -- we will watch that from here.

But in the meantime, back up again to Washington and more with Wolf Blitzer -- Wolf.

BLITZER: Thank you very much, Bill.

Joining us now on our abbreviated LATE EDITION are two senators, two members of the U.S. Senate: in San Francisco, California, Democrat Dianne Feinstein; and in Louisville, Kentucky, the Republican, Mitch McConnell.

And I want to thank both of you for joining us today.

I want to begin with you, Senator McConnell. The Republican vice presidential candidate, Dick Cheney, had some advice for Al Gore today, saying it's time to concede. Do you think that advice is appropriate?

SEN. MITCH MCCONNELL (R), KENTUCKY: I think it is, Wolf. There are a number of Democrats who are privately very concerned that this is continuing now well into a month. Al Gore, at this rate, is going to become -- will be remembered as the Tanya Harding of American presidential history, unwilling to accept the results after we've had a count, a recount, and a selected hand recount in overwhelmingly Democratic areas.

The American people are saying through the surveys: It's time to bring it to a conclusion.

BLITZER: What about that, Senator Feinstein? Are you hearing that from your Democratic colleagues that it's time to go?

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Well, I respectfully disagree. I've just been reelected from California to an equally split Senate. The one thing that's going to give this next president the imperative that he needs to break gridlock -- which will happen because there is no mandate on whose tax plan the electorate favors, on whose prescription drug plan, on whose Social Security plan -- is really the imperative of the presidency.

That must be a legitimate imperative to be effective, I think, in the Senate. It can't be effective if six months down the stream we find out that the emperor has no clothes, that he really wasn't elected by the people of the United States or by the people of Florida. That's why these election contests in court are important to play themselves out.

BLITZER: Why is it, Senator McConnell, appropriate to do manual recounts in Texas, in New Mexico, as the Republicans are now asking for a manual recount in New Mexico, yet it's not appropriate to do a manual recount in Florida?

MCCONNELL: Well, we're talking about the law of Florida here, and if we want to do manual recounts, we should be doing them all over America, arguably, because this was a race for president.

The fact of the matter is, what the Democrats want to do is selected hand recounts only in areas where it's designed to help them. BLITZER: But Vice President Gore did offer for a complete manual recount throughout Florida I think on two occasions, and Governor Bush declined.

MCCONNELL: Well, we haven't heard anything from the vice president about that in recent weeks, but it is noteworthy, after watching the hand recount in Broward County and in Palm Beach County, how subjective that whole process is. In the case of Broward County, the standard for what would be counted changed during the course of the count.

The only thing that is truly objective is a machine recount, because it doesn't have a Republican or Democratic tilt to it. It's the only objective way to do a count, and that's the way these punch card ballots were designed to be counted.

BLITZER: Senator Feinstein?

FEINSTEIN: Well, Wolf, as one who has voted on the punch card ballot for a long time, what has become very clear is that in a close election, the equipment can be deeply flawed, that it can not function properly. I know this because I've seen ballots that I've cast, that I've pulled out, and the chad wasn't out, and I thought I did it correctly. So I can give direct testimony to that.

The thing here is that we have a very close election. Five hundred votes in one state determine the next president of the United States. Those votes had better be there.

Six months downstream, we will know for sure whether those votes are there. I think what the Miami Herald did in this morning's paper, while not necessarily dispositive, is clearly an indication that statisticians and others that will look through the Freedom of Information Act at these ballots and do a cumulative total may very well find out that the man who the system puts in is not necessarily the person that the people voted for.

BLITZER: Senator McConnell, there was an editorial in today's New York Times which suggested the following. I'll read an excerpt to you: "The one thing that Mr. Gore and Mr. Bush seem to share is their mutual determination to win ugly if they have to."

If George W. Bush eventually is inaugurated, sworn in as the next president, it's going to be an ugly situation here in Washington, at least in the foreseeable future; at least a lot of experts are predicting that. How concerned are you?

MCCONNELL: I predict just the opposite. I think closeness of the election was a message to both sides that we need to work together and pass those things upon which we can agree. It's clear there was no overwhelming mandate for either the Democrats or the Republicans in this election, and I think to go to Washington now and get into a bunch of fights would be to clearly ignore the message in a very close election.

BLITZER: You know, on that specific point Senator Feinstein, we have now learned that Governor Bush did reach out to a couple Democrats, U.S. lawmakers, Senator John Breaux of Louisiana, Congressman Gene Taylor of Mississippi, only in the past few days, seeking to establish a more bipartisan atmosphere. Is that is a good idea?

FEINSTEIN: Oh, I think it's a very good idea. I also think that Mitch McConnell is correct. The closeness of the election really gives an unusual clout to both the Senate and the House of Representatives. Bills that deal with the major issues of the campaign will in essence be forged by these bodies, not necessarily by the president. Therefore, the ability of a president to reach out and establish these contacts are really important, and I think they make a substantial difference.

You have to have the vote, though, to do that. And the only thing that we on the Democratic side are saying is, let the vote be full. Let it be fair, let it be counted, and then we are happy to move ahead to the next step.

BLITZER: Senator McConnell, in the U.S. Senate there is going to be a new lineup -- a 50-50 split -- and your colleague, the Democratic senator from New Jersey, Robert Torricelli, was on "Face The Nation" earlier today suggesting there has to be, in effect, a completely different way of thinking about majority and minority in a 50-50 Senate. Listen to what Senator Torricelli said earlier today.


SEN. ROBERT TORRICELLI (D), NEW JERSEY: The division of these committees is going to have to be equal. There's going to have to be a co-majority leaders. The leadership of the Senate is going to have to reflect the voting of the people of the states, and that was an evenly divided Senate. Whether people like it or not, whether they want it or not, we're going to have to learn to get along, come up with bipartisan solutions, and have power-sharing in the United States Senate.


BLITZER: That assumes that the Republicans win the White House and Senator Lieberman stays on in the U.S. Senate.

Is that a good idea, to no longer have majority or minorities, the chairman basically of the various committees being split up between Democrats and Republicans?

MCCONNELL: No, it isn't. Either way it goes, the Republicans are going to have a very, slim majority control of the Senate, either with Dick Cheney in the Chair, or with Joe Lieberman gone and a 51-49 narrow split.

The message was to get along. The message not was -- was not to have two chairmen of everything and have chaos. I hope what we will end up with is the ratios on each committee obviously will reflect the closeness of the Senate, but we need to have one chairman of each committee, and that should be the party that is in control, and that will be the Republicans, be it ever so narrow, after the first of the year.

BLITZER: And Senator Feinstein, is that acceptable to you?

FEINSTEIN: No. If the ratios of the committee reflect the Senate, they have to be 50-50, or they don't reflect the Senate, so that's clear. I mean, there's no other way to get there.

I think on the Democratic side, what you have seen is, in the last four years, a growing partisanship where Democrats have been left out of committee decisions. The Republican majority simply meets and makes the decision, where Democrats have been unable to make amendments to bills on the floor. This must end, and one of the ways to end it is to have an even split on the committees.

It is not true that we can't work together. I've seen through the centrist coalition, where large numbers of Democrats and large numbers of Republicans sit down and can in fact work together.

FEINSTEIN: I know I'm ranking member on a subcommittee in judiciary. I work very well with the chairman, Senator Kyl. He's been very forthcoming, so it can work.

BLITZER: OK. Senator Dianne Feinstein and Senator Mitch McConnell, unfortunately we are all out of time. We'll see if it can work. We'll see what will work and what won't work when the new Senate comes in in early January. Thanks to both of you for joining us.

FEINSTEIN: Thank you.

BLITZER: And when we return, as the Florida court stands in recess, the nation is in a waiting game as well. We'll get some insight into the legal struggles now under way. Joining us, former Clinton White House special counsel Lanny Davis and former Bush Attorney General Dick Thornburgh.

LATE EDITION will be right back.


BLITZER: Welcome back to LATE EDITION.

We'll get to Lanny Davis and Dick Thornburgh on the legal issues involved in the Florida recount, but first let's go to CNN's Mark Potter. He is outside the Leon County courthouse in Tallahassee.

Give us an update as this trial is now in recess.

MARK POTTER, CNN CORRESPONDENT: Yes, Wolf, it's in a half-hour lunch break, and we just can't tell you how long this day is going to go. What we can tell you is that it took four hours to get through two witnesses, and the attorneys for Governor Bush say that they may have as many as 10 witnesses total today.

Now the first witness they put on the stand was a statistician, who was brought on to counter testimony from another statistician who was put on the stand yesterday by the Gore team. The Gore team's position is that it can be shown scientifically that a manual recount could lead to hundreds more votes for the vice president, in part because people had problems voting with those voting machines.

But the witness today said that that analysis is flawed and is based on incomplete evidence.


BECK: From a statistical point of view, is there any valid basis for drawing the conclusion that people were in the Vote-o-Matic voting booth trying to vote for Al Gore but they simply weren't able to push the stylus through the chad?

MARAIS: Absolutely none.


POTTER: Now the next witness was John Ahmann, who was a vote- machine designer. He said there are many reasons that a ballot could have dimples or indentations that have nothing to do with voter intent. They could just be placed there unintentionally. This counters the Gore attorneys' position all dimples should be counted as votes.


AHMANN: The ballots are first received from the manufacturer in a cardboard container. And though it says right on those containers they must be stored in a type of environment which is cool, dry, you don't want to get them wet because they can expand and curl and warp.


POTTER: Now Mr. Ahmann also counters the Gore position that chad buildup in these machines could make it difficult for voters to place a vote for a presidential candidate. He said he considers that highly unlikely.

Now the vice president is arguing for a manual count in Miami- Dade and Palm Beach counties, particularly in Miami-Dade, where they point out that 9,000 votes never have been counted manually. The Bush lawyers oppose such a manual count, saying that that would be unwarranted and without basis in Florida law.

Wolf, back to you.

BLITZER: Thank you Mark Potter in Tallahassee.

And once that hearing does resume before Judge Sander Sauls, we will, of course, come back to it live.

In the meantime joining me now to help us sort out some of these legal arguments are two guests: Lanny Davis, who served as White House special counsel for President Clinton, and Dick Thornburgh, who served as attorney general for President Bush. It's always good to have both of you on our program.

And let's get right to this trial, Dick Thornburgh, in Tallahassee that is under way right now. Talk about the strategy, the legal strategy that you see unfolding, on the Bush side, of the equation.

DICK THORNBURGH, FORMER ATTORNEY GENERAL: I think it is very simple. The Bush argument is that there must be a showing that these local election boards abused their discretion, that they acted in an unreasonable way in making the decisions that they did. And the presumption of regularity that attaches to their action should survive unless there is a real showing that they have acted in an unreasonable manner. And that, I think, is how they hope to carry the day.

BLITZER: And the Gore strategy as it's unfolding right now?

LANNY DAVIS, FORMER WHITE HOUSE SPECIAL COUNSEL: Well, I agree with Dick that there has to be a showing of abuse of discretion, and the refusal of the Dade County canvassing board to recount those 9,000 ballots that have never been counted. Let's remember the margin of difference right now, on which the entire presidency hangs, is 113 votes, if you include 215 counted votes in Palm Beach County, 156 counted Gore votes in Dade county, and 52 votes, counted votes...

BLITZER: Well, the way they were counted, there's a certification of a 537-vote difference and those other votes were thrown out.

DAVIS: Yes, but I'm saying, they were counted as Gore votes, and thrown out. If you win the argument with this judge, at least count the Gore votes that have been counted that were thrown out, the margin's 113 votes. That shouldn't be too big to suggest a recount is necessary here.

BLITZER: Dick Thornburgh.

THORNBURGH: This is a kind of cherry picking process, I think, that the Gore people have followed from the very outset. There was an interesting story this week that came out of Florida about some estimated 5,000 felons, 75 percent of them registered Democrats, who voted illegally in this election. Now clearly their votes shouldn't count. But how...

BLITZER: I thought felons were not allowed to vote.

THORNBURGH: ... That's the whole point. And they were by mistake permitted to vote. And that means that there is 5,000 votes out there that shouldn't have been cast.

BLITZER: So you would agree that if those felons were allowed to vote, those votes should be thrown out.

DAVIS: I think -- are you suggesting most Democrats are felons, or most felons are Democrats?

THORNBURGH: Only reporting the news. (CROSSTALK)

DAVIS: The law should be strictly applied, and that's one of the reasons that I think there's a double standard going on here. You have 15,000 people who were assisted by Republican workers in Seminole County, and their absentee ballot application forms were illegally filled out.

BLITZER: Well, that's before the courts now in Seminole County.

DAVIS: But we've never (ph) applied the law here. I'm saying that we've got a 114-vote margin if you count votes that were actually counted. This judge should allow a recount of at least the 9,000 disputed votes.

BLITZER: Dick Thornburgh, a lot of people are saying what Governor Bush's legal team is trying to do now in all these court battles is just play out the clock, get it over with so you get to that December 12 deadline, which I assume is a deadline, for the Florida electors to be selected.

THORNBURGH: Well, I think you saw a good example of how the clock can be played out yesterday when the Gore team, before Judge Sauls, consumed eight hours putting two witnesses on the stand.

So that of necessity, as we referred to before, this contest procedure involves the presentation of witnesses and evidence and the right to cross-examine, which is a basic of the process, and it can stretch on to the point where it may not resolve itself prior to December 12.

BLITZER: You have to admit, Lanny Davis, that if the Gore legal team wants to present witnesses, the other side, the Bush legal team, has a right to cross-examine and bring their own witnesses -- that's due process.

DAVIS: Yes, I think that's true, and I wish that we on the Gore side were a little bit more focused so that we could focus in on the real issue here, which is counting votes that clearly have punctures in them. I think the dimpled chad issue is a much tougher one. I wish we hadn't gone down that road. The punctured votes clearly -- even the Republican judge ruled those votes as Gore votes, as we saw in Broward County. We will win this election if we just count punctured votes in Dade County.

BLITZER: Dick Thornburgh, I'd be interested in your assessment of the U.S. Supreme Court, that 90-minute audio tape that we all listened to. We were riveted by -- at least I was riveted by it, I assume you were as well.

What tea leaves, what did you glean from listening to the arguments that were made, the questions that were asked of these lawyers?

THORNBURGH: Wolf, as those of us who have argued our own cases before the Supreme Court know full well, it's somewhat risky to draw from the questioning and the discussion in the courtroom some hard and fast conclusions about what the result's going to be.

BLITZER: Although when Justice Antonio Scalia says to Lawrence Tribe, the lawyer for Al Gore, "I think you may be wrong," you get a sense of what his position is.

THORNBURGH: Well, I think there are two possible results here. I think obviously as a supporter of Governor Bush, I would look for, on the merits, the case to be decided, perhaps even as close as 5 to 4, in his favor.

But I think a second alternative is, the court may not decide the case at all. They may send it back as, in their terminology, "improvidently granted," and in that case, accompany it with an opinion that sends a warning shot across the bow of the Florida Supreme Court that the U.S. Supreme Court is looking over their shoulder and that they should behave themselves in dealing with these separation of powers issues.

BLITZER: "Improvidently granted" means in effect it wasn't right for adjudication -- right now I'm teaching you law, Lanny Davis. I'm trying to explain to you what's going on. You have the last word.

DAVIS: Maybe Justice Kennedy or Justice O'Connor is watching this program; those are the two swing votes. This case, if decided on the merits, would be the exemplary demonstration of judicial activism, of jumping into a question which decides nothing other than a political statement. Between 500 and 900 votes is the only effect of the Supreme Court decision.

This is not a case the Supreme Court ought to get into. It shouldn't be in the political arena; it should be in the judicial arena. Judicial restraint calls for dismissing it as improvidently granted.

THORNBURGH: Too bad the Florida Supreme Court didn't hear Lanny make that statement.

BLITZER: All right, we have to leave it right there. We'll see if you guys are back on LATE EDITION next week. We'll see what happens this week. Thanks again for helping us understand a little bit more clearly the letter and the spirit of the law. Thanks for joining us.

And just ahead: Is the public's patience wearing thin in the battle for the White House? We'll go around the table with Roberts, Page and Brooks when LATE EDITION returns.


BLITZER: They're taking a lunchbreak at the Leon County Circuit Court. Judge Sander Sauls' hearing will resume soon, but for now, we're going to our LATE EDITION roundtable.

Joining me here in Washington, Susan Page, Washington bureau chief for "USA Today"; Steve Roberts, contributing editor for "U.S. News & World Report"; and David Brooks, senior editor for "The Weekly Standard."

Steve, let's take a look at some Newsweek poll numbers that are just out. This question: How has Governor George W. Bush handled the Florida vote. Approve, 53 percent; disapprove, 41 percent.

Now, conversely, how has Vice President Al Gore handled the Florida vote. Disapprove, 55 percent; approve, 40 percent. Clearly, more people think George W. Bush has handled Florida vote better than Al Gore has.

STEVE ROBERTS, CNN COMMENTATOR: I understand that's what polls say. I think both have performed rather badly, myself. I think that Gore clearly has -- he's had a weaker hand, you know. He's had to come across as -- he's been on the losing side, and he seems to be the one who is preventing the closure and preventing the country from getting on.

And every time he's come out, I think he's reminded a lot of people why they don't like him. You know, he can be awfully pedantic, and awfully insufferable. But I don't think George Bush has done very well either. I think he's come across as weak, as sort of this incredible shrinking candidacy. And it raises again these questions, is this guy really ready? It's almost as if he's scared to be president.

BLITZER: David, both sides have handled it poorly, both of these gentlemen?

DAVID BROOKS, CNN COMMENTATOR: Well, I think they couldn't have handled it any other way. We like to think our president is in charge, the guy on the white charger; the whole White House operation is built on this myth that the president really runs the country. But they're not in charge, they're clearly not in charge. The lawyers are in charge, the dimpled chads are in charge, how many angels can dance on head of the...

BLITZER: But I thought the buck stops with somebody.

BROOKS: ... right now, it stops with the lawyers and Judge Saul, so they are victims like the rest of us. Though we have seen something interesting about Bush's style, the way he's deployed the power to Cheney and to others. That is his style, giving powers to others and hanging back. We are seeing a different sort of presidential style than the John F. Kennedy style or the Bill Clinton style.

BLITZER: And some people, Susan, say that's very impressive that he's bringing in topnotch people to really help him during this crisis.

SUSAN PAGE, CNN COMMENTATOR: It's almost like Cheney, though, is prime minister of the government. It's a different kind of structure than we've had in the past -- in modern times.

I do think we can tell a lot about the leadership styles of these two men by how they're behaving. You see Al Gore in charge of every decision, I think in fact, from his dining room table sitting there with two computers and two phones, talking to everybody, directing things, and then George Bush seems like a much more -- almost a reclusive figure.

BLITZER: Is that hurting George W. Bush, the fact that Dick Cheney is out there, he's out on television, he's really the take charge kind of guy, and George W. Bush is out at the ranch?

ROBERTS: Well, it's hard to say, but I do think first impressions, you know -- your mother always told you only get one chance to make a first impression, right. And I think the first impression that Bush is making is not particularly powerful, it's not particularly strong. He's appeared rather weak in his public appearances, and in fact one of his own advisers said -- I think it was Andy Card, his choice of chief of staff -- said, well, we have to make sure that Governor Bush knows how the White House operates. You know, that's a pretty big admission that this guy isn't quite ready to take over.

BLITZER: Is Dick Cheney running the show as far as you can tell, David?

BROOKS: It looks like he's been given the task. You know, he's been asked this question, and it looks like Bush said, this is your task, fill out the administration. Though clearly the way it's being staffed and the way it's being talked about, it's filled with Bushies -- Andy Card, who's a Bushie going way back, he's one of the family.

BLITZER: Is that bad, though, that he's reaching out to people who worked for his father eight years ago, and trying to bring them back into a new Republican administration?

BROOKS: Well, we've already had one Bush administration. If we're going to have the same one over, you know, why bother?

PAGE: I do think that Cheney has been a pretty impressive figure. I mean, I think he's been very reassuring. He's obviously very informed, he knows how the town works. And for those who might have qualms about Governor Bush's experience, I think it's been comforting to see this person.

BLITZER: Precisely some of the criticism that he received during the campaign, for not being a great campaigner, not bringing a lot of votes out there from Wyoming or someplace else, that may be a reason why he's doing as well as he is right now.

PAGE: And this, of course, is why George Bush chose him as his running mate, because he knew he would be good in a governing situation, which of course, they eventually hope they'll be in.

BLITZER: Doesn't that bespeak well of George W. Bush, Steve, that he's surrounding himself with Colin Powell and Dick Cheney, Andy Card; these are all experienced people.

ROBERTS: Yes, we want -- he wants us to think that this is a reassuring that he will surround himself with good people. And yes, I feel better that Dick Cheney's there. I feel better that Colin Powell's there. I'm glad somebody knows how to run the government, because I don't think George Bush does.

But I do think that there is a risk here, and one of the problems with Cheney: This guy's had a heart attack a week ago. And you know, he's been taking on an awful lot here, and I'm not sure this is particularly the prudent thing. If they're going to be relying so heavily on Dick Cheney in this administration, maybe he should be getting some rest.

BROOKS: That's up to doctors, and his doctors...

BLITZER: Yes, his doctors say that he's okay; I saw him last night at a reception and he seemed very fit, very alert.

BROOKS: Even arm-wrestling, as a matter of fact.

BLITZER: I wasn't arm-wrestling, but he seemed pretty impressive to me. If his doctors say go ahead and do it, he's got to do it.

BROOKS: Absolutely, and what we are seeing in this administration is like an administration of sensible shoes. People you can trust -- a bunch of CEOs sitting around, you know, sober, responsible. They may not please the conservatives; I suspect six months from now conservatives will be hopping mad. They may not please the liberals, obviously not, but it is a responsible, boring, centrist, very dull administration, so far.

PAGE: Of course, there is something you have to do besides run government when you take over, and that is really connect with people and show leadership, and especially after an election like this, where you can't automatically claim a mandate. It seems to me that is something only the president can do, and if Bush and Cheney end up taking over the White House, that's something that will be on President Bush's shoulders alone.

BLITZER: One thing that Dick Cheney did say earlier today, on "Meet the Press," and Andy Card said on a couple of shows, is that the country seems to be heading towards a recession, an economic turndown, as if in effect they're saying, well, this would be Bill Clinton's recession. There have been some negative economic indicators, including the markets, which have not been good lately. But could this kind of be a self-fulfilling prophecy, if they are talking so gloomily about that right now?

ROBERTS: Well, you know, the markets which I do not pretend to be an expert on, do respond a lot to psychological signal-sending. I think they are trying to warn people. You know there is a history here, too. You know, Bill Clinton took a lot of credit for the resurgence of the economy, which a lot of Republicans continue to believe should have been credited to George Bush, so, maybe there is some payback here. Maybe they're saying, look, we are heading into recession, and it's not our fault; it is the other guy.

BROOKS: But that talk is about the tax cut. They want to have a big across the rates tax cut, and their argument is the economy is going down, we need a stimulus. No, they're talking about -- they are trying to think, right now, what are we going to do in our first three months in office to get rid of this era of bad feelings. And they've got a bunch things which they think can be done. The tax cut is the mother lode. That's what they really want to get done.

BLITZER: David Brooks, Susan Page, Steve Roberts. Thanks for joining us for our abbreviated LATE EDITION roundtable.

We have to take another break. When we come back, we'll head back to Tallahassee and the Leon County Circuit Court hearing, which is expected to resume momentarily.

Stay with us.


BLITZER: Welcome back.

You're looking at a live picture of the circuit court in Leon County, in Tallahassee.

We're standing by awaiting for the resumption of the hearing before Judge Sanders Sauls. He is expected to take up testimony once again from witnesses being put forward by George W. Bush's attorneys. And as we await the resumption of this trial, let's bring in CNN election analyst Ken Gross, former chief of enforcement at the Federal Elections Commission here in Washington.

As you take a look at this testimony that we heard earlier today in this county courthouse, Ken, how compelling has the testimony been?

KEN GROSS, CNN ELECTION ANALYST: Well, I think it was very interesting testimony that was basically designed to counter the Gore witness yesterday about all the dimpled chads. And just as the Bush people, I think, put dents, or put holes, into Mr. Brace, the Gore witness yesterday on cross-examination. I think the -- Mr. Zack did that today, helping the Gore campaign.

You know, it almost sort of balances out. The thing that -- the thing that I found interesting was that at the end of the testimony Judge Sauls himself had some questions. And they related to really, I think, the key to the Gore case, and that is getting these Miami-Dade ballots counted.

And he was saying, you know, is there a way in which the machine will count these once, twice and record them as no votes and they really are votes? Suppose there's just a little bit of light coming through, will that be picked up? And the Bush witness admitted that if there's just maybe a little bit of light it might not get picked up. And he also acknowledged that the chads could shove back up into the hole, and that would be recorded as a no vote.

So that was real progress. Again, you don't want to read too much into what judge asks or what happens in the middle of a trial, but I thought that was at least encouraging for the Gore people. BLITZER: Well, Ken Gross, you've observed these kinds of trials in the past. When there's conflicting witnesses, when there's experts on both sides who seem to make rather good points, the burden of proof rests on the side that seeks some sort of grievance. So it seems that the Al Gore legal team has a much more difficult challenge right now.

GROSS: No question about it. The uphill battle is for the Gore campaign. As the plaintiff, they carry the burden as the plaintiff. What they're working -- that's why I think this discussion, this legal discussion, about the standard of review is so important. Because if they can say that the judge doesn't have to look to what the canvassing board did and he can just take it upon himself to make a legal conclusion as to what the standard is, that helps overcome the burden of proof at issue that the plaintiffs have, in this case the Gore campaign.

BLITZER: And what happens if there are different standards, though, for those chads, different standards in Palm Beach County and Broward County and Miami-Dade County? The judge has to look at this and say, you know, maybe there is no fair way to adjudicate this kind of matter.

GROSS: Well, if the judge is going to agree to count, to either recount the Palm Beach or count manually for the first time the Miami- Dade 10,000 or 9,000 ballots, he is going to have to set a standard. He just can't send out special masters or clerks without any direction.

And again, looking to his questions yesterday, he seemed to not only admire the work that Judge Burton, the Palm Beach canvassing judge did, but also referred to Judge Labarga's decision in Palm Beach, which actually set the higher standard, the standard that the Gore campaign doesn't like as much. But even with the higher standard, you know, not counting every dimpled chad, I think the Gore campaign would be very happy if they can just count those Miami ballots by hand, even with the higher standard. That's the key to this case.

I think that with any standard the Gore people feel that if they can get those 9,000 or 10,000 ballots counted, that is going to be a win for them.

BLITZER: Ken Gross, stand by.

Gary Tuchman is inside that courtroom right now.

Gary, give us a flavor of what's happening. You were there all day today. What happened earlier?

GARY TUCHMAN, CNN CORRESPONDENT: ... ready to start after their afternoon recess. And I can tell you Democrats feel they scored a victory with the testimony of that last witness, with the cross- examination.

But I just talked to Bush lawyer Barry Richard. He said, listen, the fact is no one has come into this courtroom yet and given us any evidence that there is such a problem as chad build up when it comes to voting. So no matter what this witness said under cross- examination, it doesn't make a difference because there has been no evidence that there's such a problem.

I'll tell you one other thing, Wolf. A spokesman for the court is telling us that the judge has been told that there are two more witnesses for the Bush team, and then they'll be done. Now that doesn't mean they won't call more. They reserve the right to call. They had 95 witnesses on their list. They never were going to use that many, but they reserve the right, depending on how the case is going, to call more witnesses. But right now, a court spokesman says they believe they will only have two more.

As far as when the decision would come down from the judge, it won't necessarily come right after this case has been heard. The judge could wait a day, write an opinion. But he could also sit on the bench and utter his opinion immediately. They just don't know at this point when that opinion will come down. But one thing we have to keep in mind, once the Bush team rests, then it's a chances for the secretary of state's attorney to have his case, each county can have a case, and there are interveners in this case, lawyers representing common citizens who have complaints. So it won't be over once Bush team rests.

BLITZER: Gary Tuchman in the courtroom.

And as we look at a picture of the Gore legal team led by David Boies, we're going to take a quick break.

When we come back, this hearing is expected to resume momentarily. And of course CNN will bring it to you live.

Stay with us.


BLITZER: Welcome back.

We're awaiting the resumption of the hearing before Judge Sanders Sauls circuit court in Leon County. The picture that you're now seeing, people getting ready for this hearing.

Gary Tuchman is on the telephone. He's inside that courtroom.

Gary, any indication this is about to begin?

TUCHMAN: Wolf, all the lawyers are sitting at their seats, the court has quieted down, the court reporter is sitting down. So everything is ready for it to start. The judge has been fairly prompt throughout these last two days, and we expect the court to reconvene any minute.

BLITZER: And this was a lunch break, Gary. Do we have any indication -- originally, the judge said he wanted it all done yesterday. This is now the second day. Earlier today he suggested, at the beginning, shortly after 9:00 a.m. Eastern, that he was hoping it could be completed this morning. But it looks like it's going to continue.

TUCHMAN: Well, it is going to continue, but the judge says he wants it to end.

And here he is.

BLITZER: All right, let's listen to the judge.

SAULS: OK, let's see. Have we got everyone? All right, then the defense will call the next witness.



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