ABC & NBC Skipped "Vacated" Order; Gore Urged to Fight On; Reporters a Sounding Board for Boies; Toobin's "Whack"

1) On Monday night all three broadcast networks led by stressing setbacks for Gore, but only Tom Brokaw incorporated finality into his lead as he suggested Judge Sanders Sauls "may have finally settled the presidential election." NBC's David Bloom still tagged Katherine Harris as the "Republican Secretary of State."

2) The U.S. Supreme Court ruled that "the judgment of the Supreme Court of Florida is therefore vacated," but of the broadcast network evening shows, only CBS mentioned the "vacate" order. ABC and CBS stressed a request for clarification. NBC's Pete Williams emphasized how the court ruled the decision "incomplete."

3) Dan Rather warned about the intent of "Florida's Republican-controlled state legislature to name its own slate of 25 electors to vote for Bush and deliver the presidency to him no matter what."

4) Time's Tamala Edwards urged Gore to fight on: "If you really believe that you won and it comes down to taking another month, another six weeks...I think any of us, if we were in his shoes, would probably fight that battle."

5) David Boies uses reporters at a Tallahassee bar as a sounding board for his arguments, a nugget noticed by FNC Brit Hume in a Washington Post story.

6) CNN's Gary Tuchman fed lines to David Boies: "Republicans came back and said, 'Send all 1.1 million ballots.' Now they don't want anything counted?....Let me try to say it. Do you think they're trying to make this more time-consuming?"

7) ABC's Jeffrey Toobin gave a guy who tried to cut into line in front of him a "whack" and, the Weekly Standard recalled, Toobin has an "underreported connection" with David Boies who "was Toobin's personal lawyer in the early 1990s when Toobin sued Iran-Contra prosecutor Lawrence Walsh."

8) Ted Turner's solution: Hold a national run-off and then amend the Constitution to allow automatic run-offs in the future.

9) While President of CNN in March, Newsweek disclosed, Rick Kaplan participated in a Gore campaign debate rehearsal session.

 1

"A very bad day for Al Gore" declared ABC's Peter Jennings as on Monday night all three broadcast networks led by stressing setbacks for Gore. Dan Rather delivered the least negative spin for Gore. Only Tom Brokaw incorporated finality into his lead as he suggested Judge Sanders Sauls "may have finally settled the presidential election."

     Here's a rundown of how ABC, CBS and NBC opened their December 4 evening newscasts:

     -- ABC's World News Tonight. Peter Jennings: "It was a very bad day for Al Gore and late this afternoon his lawyer put it as clearly as can be, 'we lost, they won.' It is not necessarily the end of the road, but after two days of exhaustive and exhausting testimony the judge in this case, brought by Mr. Gore to continue recounting votes in Florida, has gone all Mr. Bush's way..."

     Aaron Brown began the lead story on the Sauls ruling: "Stripped of all its legal jargon, Judge Sanders Sauls' ruling comes down to one simple sentence: On election night George W. Bush won the state of Florida -- that's the evidence -- Al Gore did not."

     -- CBS Evening News. Dan Rather: "In the battle today there was at least one major court setback for Vice President Al Gore, there was one clear big boost for Texas Governor George Bush and possibly two."

     Byron Pitts started the show's first report: "Lawyers for Al Gore came to court today in need of a win in the worst way, but they lost and they lost big. One of his lawyers told me after court quote, 'Don't use my name, but we just got our clock cleaned.'" The judge, Pitts later added, said "no to every single argument made by Al Gore and his army of lawyers."

     CBS News legal analyst Andrew Cohen still held out hope for Gore as he offered a rare partisan description of the members of Florida's highest court: "He has a chance before the Florida Supreme Court. Remember, that court, which is all Democrats, helped him a couple weeks ago."

     -- NBC Nightly News. Tom Brokaw: "A Florida state judge, little-known outside his courtroom until last week, may have finally settled the presidential election almost one month after voters went to the polls. Judge Sanders Sauls turned back every argument made by Vice President Al Gore's legal team in its contesting of the election. This on a day when the U.S. Supreme Court sent back to the Florida state Supreme Court its earlier ruling extending the deadline for accepting disputed ballots. And the Gore team now hopes to take Judge Sauls' decision to the Florida Supreme Court. So, there are legal moves that are left, but this certainly appeared to be a giant step toward the White House for Texas Governor George W. Bush."

     Brokaw later asserted that for Gore "to pull this out now will require the legal equivalent of a Hail Mary pass."

     David Bloom described the Sauls decision as "a sweeping defeat" for Gore, but he still managed to get in a partisan label for Katherine Harris as he introduced a soundbite: "Joe Klock represents Florida's Republican Secretary of State who eight days ago certified the election results."

     Wrapping up NBC's election stories Monday night, Tim Russert told Tom Brokaw what he'd learned about weak support for Gore among elected Democrats: "I've spoken to numerous Democrats and they are pretty much resigned to the fact that Al Gore will not be elected President of the United States. One said, however, 'it's the bottom of the ninth with two outs and two strikes, we owe it to support him, to let him take his last swing' and that's the Florida Supreme Court. If he loses there, he must get out according to every Democrat I spoke to."

2

Burying the lead. The networks were clear that Gore lost in the Leon County courtroom of Judge Sanders Sauls, but viewers of ABC and NBC would have been hard pressed to know who won or lost the U.S. Supreme Court decision announced Monday. The court ruled that "the judgment of the Supreme Court of Florida is therefore vacated," but of the broadcast network evening shows, only the CBS Evening News mentioned the "vacate" order.

     ABC and CBS stressed how the high court justices asked the Florida court to clarify its ruling allowing more time for recounts and which delayed certification. NBC's Pete Williams emphasized how the high court resisted "the urge to grade the Florida Supreme Court ruling as either pass or fail and instead label it incomplete."

     -- ABC's World News Tonight. Peter Jennings introduced the Supreme Court story: "Mr. Gore was also somewhat disappointed today by the U.S. Supreme Court. In a unanimous decision the court said it would not rule on whether the Florida Supreme Court was right when it extended the deadline for votes to be recounted in the first place. This was not, by the way, necessarily a victory for Mr. Bush. His campaign had brought the case."

     Jackie Judd began her subsequent piece: "The Supreme Court's historic hearing ended with a less than historic decision. The Justices said it was 'unclear' why Florida's Supreme Court had decided to extend the election certification deadline. So unclear they were not sure if the Constitution or federal law had been violated. The justices told the state court to clarify its decision."

     After playing audio clips from the Friday oral arguments to show how the justices were divided, Judd acknowledged the implication of the ruling without using the word "vacate": "The ruling today essentially rolls the clock back to before the Florida court made its decision to extend the deadline..."

     -- NBC Nightly News. Tom Brokaw avoided the bottom line and spun the ruling as one that no one won or lost: "Earlier today the U.S. Supreme Court issued its eagerly awaited judgment and that one was not such an open and shut case."

     Pete Williams never uttered the word "vacate" as he explained:
     "Barely 72 hours after hearing the case, the justices announced their remarkably fast decision and, bridging the apparent differences among the court, apparently deep differences, they resist the urge to grade the Florida Supreme Court ruling as either pass or fail and instead label it incomplete."

     Though he called it a judgment of "incomplete," Williams did soon acknowledge that the U.S. Supreme Court ruling "cancels out" the Florida court's decision.

     -- CBS Evening News. Dan Rather, in contrast, up front delivered the bottom line: "The Supreme Court justices unanimously set aside the Florida Supreme Court's decision to delay the final tally to include some hand counts."

     Bob Schieffer explained how the U.S. Supreme Court "set aside" the Florida ruling as he quoted how the court concluded: "The judgment of the Supreme Court of Florida is therefore vacated" and returned "for further proceedings."

Dan Rather again on Monday night portrayed the idea of the Florida legislature naming a slate of electors as antithetical to democracy.

     He announced Monday night: "Today's court ruling intensified the fight over moves by Florida's Republican-controlled state legislature to name its own slate of 25 electors to vote for Bush and deliver the presidency to him no matter what."

     In the subsequent story reporter Bobbi Harley highlighted this calm assessment from former Senator Howard Metzenbaum: "If they go forward with their plan to call for a special session they are undermining the very democracy our Founding Fathers fought and died for."

At least one reporter is holding out hope and urging Gore to continue the fight. During a panel segment at about 7:40pm ET Monday nighty on MSNBC, with "Is it over?" as the on-screen graphic, Tamala Edwards of Time argued to Brian Williams:

     "To say that this is purely craven, I think that's not looking at it quite the right way. When you think about what both of these men have been through, campaigning for 18 months is an awfully hard job and if you really believe that you won and it comes down to taking another month, another six weeks to say let me fight out this case. I think any of us, if we were in his shoes, would probably fight that battle."

If even the liberal media won't buy it then David Boies knows he's gone too far. Boies uses reporters at a bar as a sounding board for his arguments, a Washington Post story revealed. FNC's Brit Hume, Monday night on his Special Report with Brit Hume, highlighted the nugget buried deep within the December 4 front page story headlined: "Gore's Legal Eagle Has Daunting Task."

     Three-fourths the way through their piece, Post reporters James V. Grimaldi and Ceci Connolly related how Boies uses as a sounding board the reporters covering the Tallahassee action:
     "Two nights before filing the election-contest lawsuit in Leon County, Boies tested one position, whether to join the case filed against the Seminole County Canvassing Board. In the case, an election official is accused of permitting a GOP official to change errors on 4,700 Republican absentee-ballot applications and a Florida lawyer has sued, saying that all 15,000 of the ballots should be tossed out in the GOP-leaning county.
     "In an ad hoc session with reporters at Andrew's Bar & Grill, a hangout near the courthouses and Capitol dome, Boies discussed filing a separate lawsuit over the Seminole ballots. He suggested asking the court to determine which voters properly filled out the absentee-ballot applications and allowing those voters to vote again.
     "Reporters around the table looked at him incredulously.
     "'If you guys don't buy it, I'm not sure it's going to get very far,' Boies said."

     Must not have been any network producers at the bar.

Sometimes reporters in Tallahassee are indeed friends to Boies. Just check out how CNN's Gary Tuchman last Thursday fed Boies anti-Republican arguments when he resisted making them himself. Prompted by an e-mail comment the MRC's Bonnie Langborgh received, MRC analyst Brad Wilmouth went back and found the live November 30 interview between Tuchman and Boies at about 2:12pm ET.

     Tuchman's questions:
     -- "You have filed an appeal with the Florida Supreme Court to have those ballots counted immediately. What is the status of that right now?"
     -- "Now you're a lawyer who deals with lots of complicated issues, but this seems pretty clear cut. If these ballots aren't counted, you don't have a chance of winning, correct?"
     -- "But you have 10,500 undercounts in Miami-Dade county that you think would put your candidate over?"
     -- "Here's one of the most interesting issues here. You asked for 14,000 ballots to come here, disputed ballots you think you need counted. Republicans came back and said, 'Send all 1.1 million ballots.' Now they don't want anything counted? What do you think the reason behind that is?"
     Boies: "Well, I don't want to try to analyze-"
     Tuchman: "All right, let me try to say it. Do you think they're trying to make this more time-consuming?"

     Of course, Tuchman was correct, but it shouldn't be his role to feed arguments to an interviewee.

ABC's Jeffrey Toobin gave a guy who tried to cut into line in front of him the Tuesday before Thanksgiving a "whack" and, it turns out, the Weekly Standard recalled how Toobin has an "underreported connection" with David Boies who "was Toobin's personal lawyer in the early 1990s when Toobin sued Iran-Contra prosecutor Lawrence Walsh over the publication of Toobin's first book."

     The MRC's Tim Graham alerted me to a piece exploring both these issues posted on The Weekly Standard's special election coverage page. The magazine first reprinted a November 30 story about Toobin recounted by "a colleague on Jim Romenesko's Media News site." Then the magazine added its own information. You can read all this by going to: http://www.weeklystandard.com/election2000/index.html#story20

    Or, read on below.

    First, from www.poynter.org/medianews:

From DOUGLAS McCOLLAM, The American Lawyer:
In this week's New Yorker, Jeffrey Toobin writes about Florida Litigator Bruce Rogow under the title "As Nasty As They Gotta Be." The title might also apply to Toobin himself in an incident that occurred one night last week in front of the Florida State Supreme Court. It was about 9:30 p.m. on Tuesday and we had been standing in sub-freezing cold for hours waiting for the court's decision on whether hand recounts could continue. Without warning, a court marshall appeared and directed the assembled media throng to line up single file to get the opinion. By the time the announcement came, many reporters had grown tired of the cold and returned to their Bedouin tents or RVs to warm up and get something to eat. When they got the word and came rushing back, the line was already a hundred deep. One distraught network runner then tried to ease into line in front of Toobin. Mistake. Deftly shifting his cell phone from left hand to right, the bespectacled ABC legal analyst and author gave the interloper a mighty whap, turning him away. "Hey!" the stung man screamed. "I don't give a shit who you are -- you don't touch me."

Toobin showed him his back, not even bothering to get off his cell. The guy hung around for a moment trying to look tough before shuffling off toward the back of the line. Later that night I passed Toobin as he finished a stand-up shot for ABC. "Pretty rough in there tonight," I said. "Yeah!" he agreed. Then he stopped, turned, and did a little Ali-shuffle, raising his hands in triumph: "Legal Analyst by day; Street Fighter by night!"

     END reprint of MediaNews item.

     The Weekly Standard's online version of its "Scrapbook" page then elaborated, as reprinted below:

Toobin has an interesting, underreported connection with one of the major players in the Florida drama. David Boies, now Al Gore's lead counsel, was Toobin's personal lawyer in the early 1990s when Toobin sued Iran-Contra prosecutor Lawrence Walsh over the publication of Toobin's first book, Opening Arguments. Walsh thought Toobin (who had been one of Walsh's staff lawyers) had used privileged grand-jury information in the book and tried to stop its publication. Toobin and Boies got a federal judge to rule that the book contained no classified information.

Walsh, something of a street fighter himself, struck back six years later in his own book, Firewall, accusing Toobin of failures as a prosecutor and of walking off with classified documents (which Toobin denied). Walsh's most piquant anecdote described those documents as being discovered later in Boies's wine cellar. James Ledbetter told the tale (the only account The Scrapbook has seen of this aspect of the Toobin-Boies connection) in his Press Clips column in the May 20, 1997, Village Voice.

"Toobin's former boss," wrote Ledbetter, "accuses him of stealing hundreds of government documents, some classified. 'After various evasions by Toobin,' writes Walsh, 'a Justice Department security officer found the documents in the wine cellar of the home of one of Toobin's lawyers.'

"Walsh told the Voice there was no doubt Toobin did take classified documents off his office's premises, citing security officials as his source.

"Toobin adamantly denies removing anything classified: 'In eight years, no government official has ever suggested that I stole anything. I went to work at the U.S. attorney's office, which doesn't hire people who've stolen government documents.'

"Toobin insists that Walsh's security officer reviewed every single document I took out of that office before I left in 1989 -- an assertion Walsh disputes. (The security officer, Al Stansbury, now works for the FBI. He did not return phone messages left at his office.)

"Toobin does acknowledge, however, that copies of materials he removed from the special prosecutor's office did end up in the cellar of his attorney, David Boies. According to Toobin, several copies were made of materials he took from Walsh's office during litigation in which Walsh tried to delay publication of Toobin's first book. When that litigation ended, Toobin says he thought all the copies were returned to Walsh, 'but copies turned up in David's wine cellar. I didn't know anything about it,' Toobin said. He offered that his attorney is disorganized and that Boies had no intention of doing anything with them. Boies reiterated to the Voice that Toobin didn't steal anything, and says the file box was in his basement, not his wine cellar. 'I do have a wine cellar,' Boies said, 'but my wine cellar has wine in it.'"

     END Reprint

Amend the Constitution to allow for a national run-off? That's Ted Turner's idea as quoted in a November 30 Reuters story highlighted by www.drudgereport.com.

     The Philadelphia dateline Reuters dispatch recounted: "CNN founder Ted Turner has a way to end the political wrangling in Florida -- declare the U.S. presidential election a tie and hold a national runoff between Republican George W. Bush and Democrat Al Gore.
     "'Let's face it. It's a statistical tie. That's what you'd call it if it was a sporting event,' the television mogul said on Thursday in a speech to the World Affairs Council of Philadelphia.
     "'I think we should have a runoff. Neither one got a majority because of the votes for (Ralph) Nader and (Pat) Buchanan...and I think we ought to amend the Constitution so this doesn't happen again. Then if we don't have a winner with a majority, we have another election a few days later.'"

     The founder of CNN who is now the Vice Chairman of Time Warner even got sillier. Reuters related: "'Maybe we could have co-Presidents. You be President this week, and I'll be President next week. It's a real hard job, and that might work pretty well because the President would get plenty of rest that way,' joked Turner, a philanthropist whose fortune is estimated at over $9 billion."

9

Was former CNN President Rick Kaplan involved in advising the Gore campaign while he was still running the cable news network? Did he have special behind-the-scenes access because of his close personal connection to Bill Clinton? Those questions are raised by an intriguing sentence in the November 20 Newsweek brought to my attention by the MRC's Rich Noyes.

     In early September Kaplan was let go by CNN, but back in March he was still President of CNN/USA. Keep that in mind as you read this paragraph from Newsweek's massive "The Inside Story" treatise on the campaign. This appeared about 30 pages into the series of articles which listed Eleanor Clift as the reporter with Gore, on page 65 in "Spring Fever" section:
     "Yet even after Gore had sewn up the nomination, he kept on robotically attacking Bradley in primaries that were, for all intents and purposes, meaningless. At a rehearsal for a California debate on March 1, former CNN President Rick Kaplan joked, 'Let's do the debate now.' Gore's sparring partner, Tom Downey, intoned, 'I'm going to kick you're a--.' Without missing a beat or cracking a smile, Gore mechanically launched into his standard rap, attacking Bradley's health care plan."

     Kaplan certainly gave CNN access. One night he's staying overnight in the Lincoln bedroom as Bill Clinton's personal guest, another day he's playing golf with Clinton and then on another he's in a debate rehearsal session giving Gore a command -- although maybe Eleanor Clift was there too. But were they advising or observing? -- Brent Baker

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