by Ted Cruz
One day about midway through the recount, he was leaving the headquarters of the Florida Republican Party—the George Herbert Walker Bush Building, as it so happened—and was carrying a suitcase. I said, “John, where are you going?”
“I’ve got to get back to D.C.,” he said.
“John, we’re in the middle of a battle for the country,” I said. “How can you be leaving?”
He somewhat sheepishly replied, “Well, I’ve got a U.S. Supreme Court argument tomorrow morning.”
I had to laugh and say, “Well, that’s a pretty good reason for you to go.”
Roberts flew home, argued a complicated intellectual property case that he went on to win, 9–0, and then immediately returned to work, helping us win the recount battle.
Some of the depictions of the recount have described the Bush team as carrying out an elaborate, detailed, meticulous legal strategy. That’s nonsense. It was one step shy of utter chaos. I should know, because I helped managed the process.
Over the thirty-six days, there were seven different legal proceedings that could have cost George W. Bush the presidency of the United States. There was no blueprint or guidebook for that seven-ring circus. It was a madhouse. Indeed, in the first six days I was in Florida, I slept a total of seven hours.
To give just one example of the fly-by-the-seat-of-our-pants nature of the endeavor, I can remember tearing pages from legal briefs just hours before they were due. The lawyers who wrote them would protest, “We’ve gotta file this in two hours! What the heck are you doing?”
“I don’t care,” I would reply. “You can’t say this! We said the opposite thing in two other courts!”
In retrospect, it was pure serendipity that I found myself in the middle of this extraordinary legal proceeding. As it happened, I was the only practicing litigator who’d been on the full-time campaign staff. Moreover, the legal issues were constitutional, and I’d practiced constitutional litigation. And, my background was at the U.S. Supreme Court, and that’s where this legal fight was heading.
That’s not to say that others didn’t see me as too young for the job. Once, over Thanksgiving, I was walking over to the federal district court in Tallahassee to file a pleading. One of the more senior Bush attorneys (who later became a cabinet member) grabbed me by the shirt, pulled me up in his face, and growled, “Ted, don’t f*** this up.”
I calmly replied, “It entails walking across the street and handing these papers to the clerk. . . . I feel confident I can accomplish that task.”
Everyone was on edge and had good reason to be skeptical. This was the finest litigation team ever assembled, a legal dream team, and it included past and future cabinet members, deputy cabinet members, and White House chiefs of staff. I felt like Opie on The Andy Griffith Show.
Regardless of age, to a person every one of the lawyers on our team was horrified at what was happening. We sincerely believed that our candidate had won the election and that the other candidate was trying to steal the presidency.
I believe to this day, however, that there was a big difference between our approach and theirs. The fact is that every time the ballots were counted—four separate times—Bush won. The Democrats’ approach was simple: They were going to keep counting, and counting, and counting until Gore won. But he never did, and at some point they had to stop counting.
My former law professor Alan Dershowitz, who supported the Gore campaign in that proceeding, has said, “The Bush team emphatically outlawyered the Gore team.”
Part of the reason is very simple. We had senior, experienced lawyers handling every component of it. Then we had senior press surrogates carrying the public messaging, most significant Jim Baker.
On the Democratic side, almost every one of those jobs was done by David Boies. An extraordinarily talented attorney, Boies is one of the most versatile litigators I’ve ever seen. He is great with the facts. He is great with the law. But there are limits to human endurance.
Boies, it seems, failed to recognize the simple reality that he had only twenty-four hours in his day. He led the federal litigation team for Al Gore, the state litigation team for Al Gore, and the U.S. Supreme Court argument for Al Gore. On top of that, he became Gore’s chief press spokesperson.
The last job he got by default. The first two press surrogates Gore relied upon were Warren Christopher and Bill Daley. Christopher was an aging former secretary of state who did not come across well on camera. And, through no fault of his own, Daley’s image was even worse. It simply was not ideal to have the scion of one of Chicago’s great political families insisting, “We’re not stealing an election.”
In any other litigation, the performance of the Democratic lawyers at trial would likely have been deemed malpractice. I don’t say that lightly.
One example suffices. At the contest trial Gore’s team presented just two witnesses. One of them was a statistician from Yale. The Gore legal team’s theory centered on partially punched “chads,” which are perforated squares on the ballot that voters punched with a stylus in order to select their candidate. The statistician was supposed to show that votes for Gore went uncounted, because over time too many chads would stack up under the first column of the punch card machines, making it harder for Gore voters to push through their vote in that column.
The theory never made much sense (presumably the “problem” would have affected Bush voters, too). Regardless, to support their theory, the Yale statistician testified that in a previous election, there had been significantly more votes cast in the U.S. Senate race than in the governor’s race. The only explanation for this difference, he testified, was that the candidates for governor had been in the first column of the ballot, while the candidates for Senate were in the second column.
Thus, the Gore team argued, the chads from the first column had built up in the voting machines, and voters who wanted to vote for the governor could not do so. The same thing, their theory went, happened with Gore in the presidential race in 2000. Our campaign’s trial attorney, Phil Beck delivered a devastating cross-examination of the statistician that proved that Gore’s star witness hadn’t even examined the ballot. It turned out that both the governor’s race and the Senate race were in the first column, which forced the statistician to admit on the stand that his entire testimony was flawed. It was the most devastating cross-examination I’ve ever seen.
But our strategy was hardly rocket science. Rather, we did the basic legal homework that lawyers should do to prepare for court. We had read the statistician’s witness report, pulled the actual ballot, and discovered that he didn’t know what he was talking about.
The Democrats should have known that as well. If there’s one thing that the Democratic Party has in abundance, it’s capable trial lawyers. For the life of me, I cannot understand why they did not recruit a serious, substantial legal team for every aspect of the recount.
How does one count a partially punched chad? That question bedeviled the Florida courts.
Unfortunately, some voters did not properly punch the chads for their preferred candidates. For example, some voters punched the chads by Al Gore’s name and by George Bush’s name. Some voters partially punched Gore’s chad and completely punched Bush’s chad. Some voters partially punched Gore’s chad and did not completely punch any chad. Some voters partially punched Gore’s chad and Bush’s chad, but punched one more forcefully than the other. And so on.
Before long, people were calling a chad with three of its four corners punched a “hanging chad.” A chad with two of its four corners punched was a “swinging chad.” A chad with all four corners attached but with a dimple in the middle of it was a “pregnant chad.” It all became a bit silly.
As the litigation progressed, a key legal question arose: In a statewide recount, is it constitutional if each one of Florida’s sixty-seven counties uses a different standard for what counts as a vote? In other words, in a statewide recount, is it constitutional if Palm Beach County counts hanging
and swinging chads, while Broward County counts only swinging chads, and Miami-Dade County counts hanging and swinging and pregnant chads?
Gore said yes. We said no. In our opinion, a presidential campaign could not be decided by sixty-seven counties saying, arbitrarily, “We’ll count this, you’ll count that, and it doesn’t matter what the next county counts.” That standardless chaos, we argued, was inconsistent with the Fourteenth Amendment, which guarantees “equal protection of the laws” and thereby prohibits the government from arbitrarily treating different groups of people differently.
The Florida state courts disagreed with us. So ultimately, we asked the U.S. Supreme Court to answer the question.
When we first decided to take our case to the U.S. Supreme Court, there was a division of opinion among the lawyers as to whether the Court would take the case. Personally, I believed the justices would see political risk in getting in the middle of such a contentious and political dispute. But having clerked on the Court, I also believed they would feel a responsibility not to duck such an important case.
As we prepared for our first trip to the Supreme Court, I worried that our lead argument was too aggressive. I suspected the justices would be cautious about making a sweeping decision in such a case. Often in litigation, swinging for the fences is a mistake; one of the surest paths to victory is finding a narrow ground that benefits your client but doesn’t require the Court to go too far out on a limb.
So I suggested a fallback argument: We should tell the Court that even if they didn’t completely agree with us, they should nonetheless vacate the decision below, clarify the federal law in question, and then send the case back down to the Florida Supreme Court to reconsider. I worked with Tim Flanigan and Noel Francisco—two dear friends, and incredibly talented lawyers—to draft the portion of our brief asking the Court to do so.
And, in Bush v. Palm Beach County, that’s exactly what the U.S. Supreme Court ended up doing. Unanimously.
The highest court in the land remanded the case back to the Florida Supreme Court . . . which then proceeded, astonishingly enough, to ignore the U.S. Supreme Court. Instead, the Florida Supreme Court (consisting of seven judges, six of them appointed by Democrats) simply reinstated its prior order of a statewide recount that would allow each of Florida’s sixty-seven counties to use a different standard for deciding which hanging, swinging, or pregnant chads count as “votes.”
Because we believed the Equal Protection Clause of the Constitution was violated by a recount that did not treat the votes of one county equally with the votes of another county, we went back to the U.S. Supreme Court.
In oral arguments there, our lawyer, Ted Olson, emphasized that the Florida Supreme Court on remand, after being unanimously vacated by the Supreme Court, did not so much as cite the U.S. Supreme Court decision. They just ignored it. If there is anything that the Court’s swing justices—Justice O’Connor and Justice Kennedy—believed in, it was the authority of the U.S. Supreme Court. Both of them were outraged by the Florida court’s defiance. Every time Ted reminded them of that defiance, Justice O’Connor or Kennedy would say something to effect of, “What? They didn’t cite it?? What?!”
I don’t think the Supreme Court’s outrage affected its 7–2 decision on the merits, agreeing with our argument that the statewide recount ordered by the Florida Supreme Court was unconstitutional because it allowed different counties to count votes using completely different standards. But the justices’ outrage did affect what came next.
Two of the seven justices who agreed with us were willing to give the Florida Supreme Court yet another chance to get it right. But five of the seven justices who agreed with us were so outraged by the Florida Supreme Court that they said, in effect, “Enough is enough. This is a presidential election. It has dragged on for thirty-six days. The ballots have been counted four times. Bush has won every time. He is the winner. The end.”
On December 12, at about 10 p.m., I got a call on my cell phone from the clerk’s office of the U.S. Supreme Court. The caller, an old friend from my days at the Court, told me, “The decision is coming down. We’re going to fax it to you now.”
I pulled the papers off the fax machine and carried them into Jim Baker’s office. As he stood there wearing a dark green Michigan State sweat suit, I handed him the opinion.
He handed it back. “Well?” said Baker. “What does it say? What does it mean?”
It was a complicated, twenty-five-page opinion, and despite my paraphrasing of it above, it did not include a line that said, “George W. Bush is president. The end.” Indeed, at that very moment, reporters were standing on the steps of the Court, utterly befuddled trying to figure out the ruling.
I read over it for several minutes, as quickly as I could, with the former secretary of state looking silently over my shoulder.
After a few minutes, I looked up at Baker and said, “It means it’s over. We’ve won.”
Secretary Baker looked at me, nodded, and placed a call to Crawford, Texas. “Well, Mr. President,” he drawled, pausing slightly after he used that title for the first time, “how does it feel?”
Chills ran down my spine.
Weeks later, Heidi observed, “It’s a good thing you were right!” It then occurred to me, “Holy cow, what if, say, in footnote eleven, it had given the Florida Supreme Court and Al Gore one more crack at the apple?”
Coming out of the campaign, I hoped to get a senior job in the White House. I thought I had done a good job on the campaign and that the president-elect had appreciated my work. But I didn’t get it, and for a simple reason: In the heat of the campaign, I had forgotten some of my own life lessons learned during my seventh-grade makeover.
Instead I was far too cocky for my own good, and that sometimes caused me to overstep the bounds of my appointed role. I foolishly thought it was my job to provide my best judgment on the right policies for our candidate. I didn’t understand that lots of others on the campaign thought my job was simply to be a conduit for their own expertise. They really didn’t give a flip what some twenty-something kid thought might or might not be the right policy outcome. As a consequence, I burned a fair number of bridges on the Bush campaign.
So, instead of going into the White House in the Bush administration, I served as one of four members of the transition team for the Department of Justice. I then became an associate deputy attorney general, with responsibility for legal policy and legal counsel.
I was at the Department of Justice only briefly, in part because I always felt like an outsider there. Attorney General John Ashcroft had brought over his own team from his Senate office (he had served as U.S. senator from Missouri) and I never seemed to be able to earn their trust. At one point, folks from the White House related to me that the Ashcroft team complained that I was too “loyal” to Bush. It had not occurred to me until then that supporting the president was deemed inconsistent with the workings of the Bush Justice Department.
I enjoyed working with the career prosecutors at DOJ—men and women deeply committed to the rule of law—and grew to very much respect the integrity of the department. By far my most interesting experience at DOJ was my brief but telling tutorial on U.S.-European relations. In 2001, I helped lead the U.S. delegation to Rome for the Council of Europe’s negotiations on a treaty relating to cybercrime.
My sojourn in Rome played out almost exactly according to preexisting stereotypes about the nations of Europe and their relationship with America. For example, almost every time the United States espoused a position, the delegate from France would oppose it reflexively.
The French were masters at posturing. The negotiations were mostly conducted in English, but the French delegate, who was fluent in English, would speak only French. Those of us who were not fluent (two years of junior high French didn’t count!) quickly had to reach for our earpieces for the translation.
Conversely, the British and the Canadians could both be counted on to support us steadfastly in negot
iations. This led me very quickly to realize that the most important country affecting the dynamics was Germany.
The German delegate was a large man with a thick beard—almost out of central casting—and he proved to be a fair arbiter. He didn’t come to Rome with an obvious ideological axe to grind or a particular country bias. So what I endeavored to do the rest of that week was go and press the case to the German delegation. If they agreed with us on the merits, then practically everyone else would as well. That in fact is exactly what happened.
Ultimately, we finalized the terms of an important treaty on cybercrime, something that has become all the more important in our modern world. Whether it is the North Koreans hacking Sony to try to stop the release of a movie making fun of Kim Jong Un or ISIS hacking U.S. Central Command’s Twitter feed to spread Islamist propaganda, cyberattacks are becoming a greater and greater threat to our nation. And we will need serious tools, and cooperation with our allies, to protect ourselves going forward.
After I had spent several months at the Department of Justice, Tim Muris, the newly named chairman of the Federal Trade Commission, reached out to me. I’d gotten to know Tim on the Bush campaign. One of the campaign’s many outside advisors, he was a seasoned lawyer and economist.
Tim had deep experience relevant to the FTC, whose statutory mandate is to enforce federal antitrust and consumer protection laws. He had served as the head of the FTC’s Bureau of Competition under President Reagan and had also served as head of the Bureau of Consumer Protection. He was looking for someone to lead his policy planning team, and asked if I wanted the job.
The move from the Justice Department to the FTC was not typical. In the ordinary hierarchy of Washington, Justice is considered a more prestigious agency than the FTC. But I was happy to go to the FTC, for a number of reasons.
