November 13, 2020

Ted Olson & David Boies

Superstar litigators David Boies and Ted Olson, who argued on opposite sides of Bush v. Gore in 2000 and later teamed up to work together, discuss President Trump’s allegations of voter fraud, litigation attempts and refusal to concede.

Read Full Transcript EXPAND

> WHAT DID THE TWO SUPER STAR LITIGATORS FROM BUSH V. GORE SAY ABOUT THIS ELECTION?
THIS WEEK ON ‘FIRING LINE.’
THE YEAR WAS 2000.
ALL EYES WERE ON THE FLORIDA RECOUNT AND THOSE HANGING CHADS.
ATTORNEY DAVID BOIES REPRESENTED AL GORE.

UNTIL THESE VOTES HAVE BEEN COUNTED, THIS ELECTION CANNOT BE OVER.

ATTORNEY TED OLSEN REPRESENTED GEORGE W. BUSH.

GEORGE W. BUSH HAS BEEN CERTIFIED AS THE WINNER OF THE ELECTION IN FLORIDA.

THE CASE WENT TO THE SUPREME COURT AND DIVIDED THE NATION.
BUT BOIES AND OLSEN WENT ON TO BECOME FRIENDS.
EVEN WORKING TOGETHER ON ANOTHER LANDMARK CASE.
TODAY, THE NATION IS BITTERLY DIVIDED AGAIN.

WE WANT TRUMP OUT OF HERE!

AND PRESIDENT TRUMP REFUSES TO CONCEDE TO PRESIDENT-ELECT JOE BIDEN.
WHAT DO DAVID BOIES AND TED OLSEN SAY NOW?

‘FIRING LINE’ WITH MARGARET HOOVER.
CORPORATE FUNDING PROVIDED BY —
WELCOME TO ‘FIRING LINE.’
DAVID BOIES AND TED OLSEN, IT’S A PLEASURE TO HAVE YOU HERE.

IT’S GREAT TO BE HERE.

IT IS INDEED.

DAVID, ON JANUARY 20th, 2021, WHO IS GOING TO BE SWORN IN AS THE PRESIDENT OF THE UNITED STATES?

NO QUESTION, IN MY MIND, THAT JOE BIDEN IS GOING TO BE SWORN IN AS PRESIDENT OF THE UNITED STATES.

AND TED, DO YOU AGREE?

I ALWAYS AGREE WITH WHATEVER DAVID SAYS.
IN THIS CASE, MY OWN MIND, I WOULD AGREE.

BACK TWO DECADES TO A WORLD OF HANGING CHADS AND BUTTERFLY BALLOTS.
DAVID, BEFORE THE SUPREME COURT HALTED THE RECOUNT, YOU SAID THAT IF YOUR SIDE, VICE PRESIDENT GORE’S SIDE LOST, YOU WOULD UNITE BEHIND PRESIDENT BUSH.
VICE PRESIDENT GORE DID CONCEDE A DAY AFTER THE SUPREME COURT DECISION AND MANY PEOPLE STILL SEE THAT SUPREME COURT RULING OF 5-4 AS A POLITICAL DECISION.
HOW DO YOU REFLECT UPON THAT DECISION 20 YEARS LATER?

I STILL THINK IT WAS THE WRONG DECISION BY THE SUPREME COURT, BUT I ALSO THINK IT WAS THE RIGHT DECISION TO ACCEPT THAT AND TO MOVE ON AND TRY TO UNITE THE COUNTRY BEHIND THEN PRESIDENT BUSH.

TED, MY QUESTION FOR YOU IS DIFFERENT.
JUSTICE SANDRA DAY O’CONNOR BY RONALD REAGAN AND RULED IN THE MAJORITY IN THAT CASE SAID LATER, MAYBE THE COURT SHOULD HAVE SAID, WE’RE NOT GOING TO TAKE A GOOD-BYE, CITING THAT IT GAVE COURT A LESS THAN PERFECT REPUTATION.
DO YOU THINK THAT THE DECISION HARMED THE COURT?

THE PROBLEM FOR THE SUPREME COURT IS THAT IT ALMOST ALWAYS GETS CONTROVERSIAL, DIFFICULT CASES AND ESPECIALLY IN A CASE INVOLVING THE PRESIDENTIAL ELECTION.
THERE WAS A WINNER AND A LOSER.
THOSE DECISIONS ARE GOING TO BE CONTROVERSIAL.
SO I AGREE WITH DAVID THAT THE RESOLUTION, HOWEVER UNPOPULAR AND HOWEVER CONTROVERSIAL IT WAS, WAS THE NECESSARY RESOLUTION FOR A PROBLEM THAT EXISTED AT THE TIME AND THAT VICE PRESIDENT GORE BEHAVED VERY APPROPRIATELY WHEN HE MADE THE DECISION, HE MADE A VERY WISE CONCESSION SPEECH AND PUT AN END TO THE DISPUTE.
THAT WAS A VERY STATESMAN LIKE THING FOR HIM TO DO.

TO THIS QUESTION OF WHETHER THAT 5-4 DECISION SOMEHOW CONTRIBUTED TO A NEGATIVE VIEW OR A LOSS IN CONFIDENCE IN THE COURT, DO YOU REFLECT ON THAT OR SANDRA DAY O’CONNOR’S COMMENTS?

I THINK THE ANSWER TO THAT IS THAT ONE COULD PICK ANY NUMBER, HALF A DOZEN DECISIONS FROM THE SUPREME COURT EACH YEAR THAT PEOPLE WILL SAY, WELL, THAT POLITICIZES THE COURT.
THE COURT SHOULDN’T HAVE TAKEN THAT CASE.
THE COURT SHOULD HAVE COME OUT THE OTHER WAY.
THERE ARE 15 TO 25 TO 4 DECISIONS PER YEAR FROM THE SUPREME COURT.
SO I BELIEVE THAT JUSTICE O’CONNOR WAS REFLECTING AND THINKING ABOUT SOMETHING LIKE THAT, BUT I THINK THE SUPREME COURT DID THE RIGHT THING AND IT REALLY HAD NO CHOICE.
DAYS FOR THE ELECTION TO BE FINALIZED, AND WHILE IT HASN’T BEEN THAT LONG NOW, THE TRUMP CAMPAIGN APPEARS TO BE FOLLOWING A STRATEGY OF CLAIMING FRAUD WITHOUT EVIDENCE.
THERE HAS BEEN AT LEAST A DOZEN CASES, FIVE OF THEM HAVE BEEN REJECTED OR DROPPED.
NOTHING HAS BEEN FILED THAT WOULD CHANGE THE OUTCOME OF THE ELECTION.
WHAT KIND OF LEGAL ACTION, DAVID, IF YOU WERE THE STRATEGIST FOR THE TRUMP CAMPAIGN, WOULD PRESIDENT TRUMP NEED TO PURSUE TO CHANGE THE ELECTION RESULTS IN HIS FAVOR?

SOMETIMES WHEN CLIENTS COME TO YOU AND WANT YOU TO BRING A LAWSUIT, THE ONLY ADVICE YOU CAN GIVE THEM IS THERE IS NOT A LAWSUIT THERE TO BE BROUGHT.
AND I THINK IF I WERE CONTACTED BY PRESIDENT TRUMP, THAT’S WHAT I WOULD TELL HIM.

DO YOU SEE A DISCERNIBLE STRATEGY, TED, IN THEIR LEGAL ACTION?

I HAVE TO AGREE, WELL, I DON’T HAVE TO AGREE, I DO AGREE WITH WHAT DAVID JUST SAID THAT IT IS SOMETIMES NECESSARY TO TELL A CLIENT THAT AT LEAST, AND I THINK I’VE HEARD DAVID SAY THIS, EVERYONE’S ENTITLED TO A LAWYER BUT THEY’RE NOT ENTITLED TO ME.
AND YOU HAVE TO, ONCE IN A WHILE, TELL A CLIENT, THIS IS NOT A CASE THAT I WOULD BRING.
IS THERE A DISCERNIBLE STRATEGY?
I DON’T KNOW WHAT IT IS, OTHER THAN TO PUT UP A SHOW FOR THE CORE SUPPORTERS OF PRESIDENT TRUMP THAT THEY’RE DOING EVERYTHING POSSIBLE TO PROLONG THE PROCESS AND BRING ABOUT HIS ULTIMATE VICTORY IN THIS ELECTION, BUT IT IS NOT GOING TO WORK.
AS I THINK DAVID INDICATED, THERE IS NOT EVIDENCE OF SYSTEMIC FRAUD.
ALWAYS POSSIBLE TO FIND A CASE OR TWO, BUT THESE SIX STATES THAT ARE IN PLAY RIGHT NOW WITH RESPECT TO THIS LITIGATION WERE ALL DECIDED BY 10,000 OR, UP TO 140,000 DIFFERENT VOTES.
SO THE OUTCOME OF THE ELECTION IS NOT GOING TO CHANGE.
IT’S PROBABLY TIME TO SIT BACK AND SAY, THIS IS NOT GOING TO SUCCEED.

DAVID, YOU’VE REPRESENTED CONTROVERSIAL CLIENTS FROM HARVEY WEINSTEIN, AND YOU’RE ON THE RECORD SAYING YOU WOULD HAVE REPRESENTED PRESIDENT TRUMP AGAINST ROBERT MUELLER.
THE LINCOLN PROJECT IS GOING AFTER ATTORNEYS REPRESENTING PRESIDENT TRUMP RIGHT NOW.
PUBLICLY CRITICIZING THEM SAYING THAT, QUOTE, THESE PEOPLE HAVE NOW DECIDED THAT ATTEMPTING TO UNDERMINE THE JUST AND FAIR ELECTION IS TO THEIR LEGAL PRACTICES.
IS IT WRONG FOR LAWYERS TO BE ATTACKED REPRESENTING PRESIDENT TRUMP IN THESE CASES?
WHICH YOU HAVE SAID DON’T HAVE VALIDITY.

I THINK IT IS MISGUIDED AND INDEED, DANGEROUS, TO TRY TO DEMONIZE LAWYERS BECAUSE OF THE CLIENTS THEY REPRESENT.
I THINK THAT EVERY LAWYER HAS A RESPONSIBILITY TO MAKE SURE THAT LAWSUITS THAT THEY BRING, THE CLAIMS THEY ASSERT IN COURT ARE PLAUSIBLE, REASONABLE, GOOD FAITH CLAIMS.
WHAT I THINK IS UP TO THE COURTS TO MAKE THOSE DECISIONS, NOT THE LINCOLN PROJECT OR NOT SOCIAL MEDIA.
I THINK IT IS UP TO THE COURTS TO DECIDE WHAT ARE VALID LAWSUITS OR NOT AND THEY WILL AND THEY ARE, RIGHT NOW, THE COURTS ARE THROWING THESE LAWSUITS.
THAT’S THE WAY THESE THINGS SHOULD BE RESOLVED.
GOING TO COURT IS THE RIGHT WAY TO RESOLVE DISPUTES.
MUCH BETTER THAN IN THE STREETS, THAN ON SOCIAL MEDIA.
SO THE IDEA THAT WE TRY TO DEMONIZE PEOPLE FOR TAKING CASES TO COURT, THAT’S WRONG.
IF THEY BRING FRIVOLOUS LAWSUITS, THEY CAN BE SANCTIONED FOR THAT AND I THINK SOME OF THE LAWSUITS THEY’VE BROUGHT HAVE BEEN FRIVOLOUS BUT THAT’S UP TO THE COURTS TO DECIDE, AND I THINK THE IDEA THAT YOU TRY TO ADVERTISE TO LAW FIRMS, EMPLOYEES, THE LAW FIRM BECAUSE WHO IS DISLIKED, IS REALLY DANGEROUS PRECEDENT.
I STARTED REPRESENTING CIVIL RIGHTS CASES IN 1960s AND THE LAWYERS COMMITTEE FOR CIVIL RIGHTS IN JACKSON, MISSISSIPPI, AND ONE OF THE REASONS THAT I HAD TO GO DOWN THERE, OTHER PEOPLE HAD TO GO DOWN THERE IS THAT LOCAL LAWYERS WOULDN’T REPRESENT CIVIL RIGHTS WORKERS BECAUSE THEY WERE AFRAID IT WOULD DESTROY THEIR PRACTICE.

WHAT DO YOU THINK ABOUT THE LINCOLN PROJECT WITH THE LAWYERS LITIGATING THE ELECTION?

I COULD NOT STATE IT BETTER THAN DAVID HAS.
AND I THINK IT IS A VERY DANGEROUS THING.
WE ENCOURAGE THE LAWYERS IN MY LAW FIRM JUST AS DAVID ENCOURAGES THE LAWYERS IN HIS LAW FIRM AND RESPECTABLE LAW FIRMS ARE ALL LIKE THIS, TO TAKE CONTROVERSIAL CASES, DO NOT SHUN CASES BECAUSE IT IS AN UNPOPULAR CLIENT.

TED, SO FAR, AT LEAST 12 CASES FILED IN SIX STATES AND THE REPUBLICAN ELECTION LAWYER YOU WORKED WITH ON BUSH V. GORE SAID HE SEES NO EVIDENCE THAT THE RESULTS ARE FRAUDULENT OR ARE RIGGED.
ARE THERE ANY CASES YOU SUSPECT COULD HAVE LEGAL MERIT?

I HAVE NOT SEEN, BUT I FOLLOW THESE CASES FROM A DISTANCE.
FROM WHAT I READ IN THE PAPER OR SEEN ON THE BROADCAST NETWORKS AND SO FORTH.
I HAVE NOT SEEN SYSTEMIC WIDESPREAD EVIDENCE OF FRAUD, CAST A BALLOT THEY MIGHT NOT BE ENTITLED TO CAST OR SOMETHING LIKE THAT.
EVERY ONCE IN A WHILE, YOU SEE SOME WRONGDOING BY SOMEONE MISGUIDED PURPOSE WITH BALLOTS PROPERLY BUT NOT SEEING ANYTHING WIDESPREAD OR SYSTEMIC OR THAT WOULD HAVE THE EFFECT OF OVERTURNING WHAT WE PERCEIVE TO BE THE ELECTION SO FAR.

IN TERMS OF WHAT HAPPENS NEXT, HOW DO YOU PREDICT THE LEGAL EFFORTS WILL PLAY OUT AGAINST THE BACKDROP OF THE STATE’S ELECTION CERTIFICATION DEADLINE?
IN OTHER WORDS, IS PRESIDENT TRUMP OUT OF OPTIONS IF A DISPUTED STATE CERTIFIES THIS IN FAVOR OF BIDEN AND MEETS THIS SAFE HARBOR DEADLINE WHICH IS DECEMBER 8th, THE DATE THAT ELECTION DISPUTES MUST BE RESOLVED.
TO YOU.

I THINK THEY’RE OUT OF OPTIONS WITH RESPECT TO THAT.
ULTIMATELY, THE CONGRESS OF THE UNITED STATES WITH ONE VOTE PER STATE, ULTIMATELY, CAN DECIDE CERTAIN DISPUTES BUT IN THIS SITUATION, I THINK THAT WHERE THERE IS CERTIFICATION BASED UPON THE NUMBER OF BALLOTS THAT HAVE BEEN CAST AND COUNTED, AND APPROPRIATELY CERTIFIED TO THE CONGRESS OF THE UNITED STATES, I THINK THAT’S THE END OF IT.

DO YOU AGREE WITH THAT, DAVID?

YES, I DO.
I THINK THAT THE LAW IS CLEAR THAT ONCE YOU GET THE CERTIFICATION, IF IT’S WITHIN THE SAFE HARBOR AND CONSISTENT WITHIN THE RULES THAT WERE IN EFFECT ON ELECTION DAY, THAT CONTROLS.

WHAT HAPPENS IF PRESIDENT TRUMP DOESN’T CONCEDE BY THE SAFE HARBOR DEADLINE THAT YOU JUST MENTIONED?

HIS CONCESSION IS IRRELEVANT AS A LEGAL MATTER.
IT MEANS A LOT TO HAVE THE OUTGOING DEFEATED CANDIDATE CONCEDE AND SUPPORT.
THAT’S QUITE IMPORTANT TO US AS A POLITICAL BODY.
BUT AS A LEGAL MATTER, HE CAN’T HOLD BACK THE TIME.
AS A LEGAL MATTER, WHETHER HE CONCEDES OR NOT, HIS TERM ENDS ON JANUARY 20th.
AND HE’S OUT OF THE WHITE HOUSE, WHETHER HE AGREES WITH HIM OR NOT.

MANY AMERICANS ARE RECEIVING A CIVIC LESSON RIGHT NOW AS THEY’RE LEARNING THAT THE CONSTITUTION DELEGATES THE POWER TO CHOOSE ELECTORS TO STATES AND STATE LEGISLATOR.
THERE IS A GROWING CONCERN AS TO WHETHER SOME COMBINATION OF GOP LEGISLATORS, APPOINTED OFFICIALS OR JUDGES MIGHT FACILITATE A CHANGE IN THE APPOINTED ELECTORS FROM A KEY STATE LIKE A PENNSYLVANIA OR A MICHIGAN.
AND A DIFFERENT PLATE TO WASHINGTON, DC TO VOTE FOR PRESIDENT TRUMP INSTEAD OF VICE PRESIDENT BIDEN.
THIS ADMITTEDLY SEEMED LIKE A SOUR PATCH SCENARIO BUT EVERY DAY THAT DONALD TRUMP DOESN’T CONCEDE, DOES THIS CONCERN YOU AT ALL, TED?

I AM NOT CONCERNED WITH THAT.
I DO NOT BELIEVE THAT THAT IS GOING TO HAPPEN.
I JUST DON’T SEE IT HAPPENING.

WHY ARE YOU SO CONFIDENT THAT THIS SCENARIO ISN’T POSSIBLE?

MAYBE I’M JUST AN OPTIMIST.
I AGREE WITH WHAT DAVID HAS SAID ABOUT THE IRRELEVANCE OF CONCEDING, BUT I BELIEVE MOST ELECTED OFFICIALS IN THIS COUNTRY BELIEVE IN THE RULE OF LAW, BELIEVE IN THE CONSTITUTION, BELIEVE IN THE ELECTORAL PROCESS, AND THAT WILL RESPECT THE OUTCOME OF THIS ELECTION.
THIS COUNTRY HAS BECOME SO DIVIDED AND SO PARTISAN AND SO BITTER, IT IS NECESSARY FOR ALL OF THE POLITICAL FIGURES IN THIS COUNTRY TO SAY LET’S STEP BACK AND GIVE THIS PRESIDENT AN OPPORTUNITY AND SUPPORT POLICY DIFFERENCES AND SUPPORT THE PROCESS BY WHICH HE WAS ELECTED AND COME TO THE EXTENT WE POSSIBLY CAN.

I AGREE COMPLETELY, TED, MOST OF OUR ELECTED OFFICIALS ARE COMMITTED TO THE DEMOCRATIC PROCESS AND I THINK THERE IS ESSENTIALLY, NO CHANCE THAT THE TRUMP CAMPAIGN COULD CONVINCE A STATE LEGISLATURE TO TRY TO OVERTURN THE RESULTS OF THE VOTERS IN THAT STATE.
BUT EVEN IF THEY DID, THEY HAVE NO POWER TO DO THAT.
THE CONSTITUTION GIVES THE MANNER OF SELECTION TO THE STATE.
BUT IT GIVES THE TIMING OF THE CHOOSING OF THE ELECTORS, THE CONGRESS, AND CONGRESS SELECTED NOVEMBER 3ELECTORS, SO THE RULES THAT WERE IN PLACE ON NOVEMBER 3 WILL BE USED.
AFTER NOVEMBER 3, THE STATE LEGISLATURES, UNLESS THEY HAVE RESERVED TO THEMSELVES A ROLE AFTER THE ELECTION, HAVE NO ROLE.
THE STATE LEGISLATURE, AS A MATTER OF CONSTITUTIONAL LAW, HAS NO POWER TO NOW SAY, WE’RE GOING TO APPOINT ELECTORS AFTER THE ELECTION DAY SET BY CONGRESS.

YOU BOTH HAVE STATED HOW IMPORTANT A CONCESSION FROM THE PRESIDENT IS, NOT IN TERMS OF LEGAL CONSEQUENCES BUT FOR THE POLITICAL AND SPIRITUAL WELL BEING OF THE COUNTRY.

YES.

THERE IS ABSOLUTELY NOTHING IN THE PUBLIC RECORD OR IN THE EXPERIENCE WITH THIS PRESIDENT TO SUGGEST THAT HE IS PREPARED TO CONCEDE.
WHAT HAPPENS IF HE DOESN’T?

I’VE GOT A LOT OF FAITH IN PRESIDENT-ELECT BIDEN TO BRING THIS COUNTRY BACK TOGETHER.
BUT THAT TASK IS MADE MUCH MORE DIFFICULT IF DONALD TRUMP REFUSES TO CONCEDE, REFUSES TO PLEDGE HIS SUPPORT TO PRESIDENT-ELECT BIDEN.
JUST LIKE EVERY OTHER DEFEATED PRESIDENTIAL CANDIDATE IN MORE THAN A HUNDRED YEARS HAS DONE.
I THINK THAT WOULD BE A MISTAKE FOR HIM.
I THINK THAT WOULD HURT THE COUNTRY, AND I BELIEVE THAT DONALD TRUMP DOES LOVE THIS COUNTRY.
I BELIEVE HE’S COMMITTED TO THE COUNTRY AND I HOPE HE SEES THAT REFUSING TO CONCEDE IS GOING TO HURT THE COUNTRY THAT HE LOVES AND I HOPE HE SEES HIS WAY CLEAR TO TAKE THE STEP THAT EVERY DEFEATED CANDIDATE HAS ALWAYS TAKEN IN THE COUNTRY WHICH IS TO PUT THE COUNTRY ABOVE THEIR OWN SENSE AND SENSIBILITIES AND PLEDGE THEIR ALLEGIANCE TO THE NEW PRESIDENT.

DO YOU BELIEVE DONALD TRUMP LOVES THE COUNTRY AND WILL DO THE RIGHT THING FOR THE COUNTRY?

I HOPE SO.
I BELIEVE THAT HE DOES LOVE THE COUNTRY.
I COULD BE A LITTLE BIT FA FACETIOUS ABOUT THIS.
I WONDER ABOUT HIS TELEVISION SHOW, ‘THE APPRENTICE’ IF HE SAID SOMEONE WAS FIRE AND THE PERSON DID NOT WALK OFF THE STAGE AND ACCEPT THE FIRING.
THIS PRESIDENT, AS REELECTION RETURNS, HAS BEEN FIRED AND HIS DATE OF TERMINATION IS JANUARY 20th, 2021, AND I THINK HE AND THE PEOPLE AROUND HIM ARE GOING TO SAY, IT IS IN YOUR BEST INTEREST AS WELL AS THE COUNTRY’S BEST INTEREST FOR YOU TO ACCEPT THE VERDICT OF THE AMERICAN PEOPLE.
YOU HAVE BEEN FIRED.
YOU MUST STEP OFF THE STAGE.

ALL RIGHT.
SO THE JUSTICE DEPARTMENT’S TOP ELECTION PROSECUTOR RESIGNED THIS WEEK AFTER ATTORNEY GENERAL WILLIAM BARR SAID THEY SHOULD EXPECT ALLEGATIONS OF VOTING IRREGULARITIES BEFORE STATES MOVE TO CERTIFY THE RESULTS.
DAVID, TO YOU, DOES THIS SEEM ATTORNEY GENERAL BARR IS PLAYING TO CAST DOUBT ON THE ELECTION RESULTS?

I THINK IT’S VERY CONCERNING.
I THINK THE REASON YOU SAW THE RESIGNATION IS THAT THIS IS NOT MERELY BUSINESS AS USUAL.
THIS IS AN ATTEMPT TO TURN THE JUSTICE DEPARTMENT, REALLY, INTO AN ARM OF TRUMP’S CAMPAIGN.
AND THAT IS DEEPLY TROUBLING TO ANYONE WHO CARES ABOUT OUR JUSTICE SYSTEM, WHO CARES ABOUT THE INTEGRITY OF OUR JUSTICE DEPARTMENT.

TED, HOW DO YOU UNDERSTAND THE ATTORNEY GENERAL’S ACTIONS?

WELL, I’M INCLINED TO GIVE THE BENEFIT OF THE DOUBT TO BILL BARR.
I HAVE RESPECTED, I WORKED WITH HIM, I RESPECTED HIM.
I’VE BEEN AGAINST HIM IN LAWSUITS AND SO FORTH, BUT I THINK HE’S A PERSON OF INTEGRITY.
I THINK HE BELIEVES VERY STRONGLY IN THE CONSTITUTIONAL ROLE OF THE PRESIDENT.
AS I READ THAT STATEMENT THAT HE MADE, HE SAID THAT WE SHOULD INVESTIGATE IF THERE’S LEGITIMATE EVIDENCE OF WRONGDOING.
IF YOU READ THE WORDS THAT HE ARTICULATED, THEY DIDN’T SEEM OUTRAGEOUS TO ME.
NOW, I RESPECT DAVID’S VIEW ABOUT ALL OF THIS AND THE ACTIONS OF THE DEPARTMENT.
BUT I’M WILLING TO LISTEN AND GIVE BILL BARR A LITTLE BIT MORE RUNNING ROOM WITH RESPECT TO THE DEPARTMENT.
SO I THINK WE OUGHT TO WAIT UNTIL THE PROOF IS IN BEFORE WE MAKE JUDGMENTS ABOUT THAT.

THE LETTER THAT BARR ISSUED, OF COURSE, MANY CAN AGREE, VERY STRAIGHTFORWARD.
BUT THE PART THAT WAS CURIOUS IS THAT IT SEEMED TO BE REPLICATING AND GIVING COVER TO THE PRESIDENT’S POLITICAL ALLIES WHO THE CYNICS WOULD SAY ARE SEEKING TO UNDERMINE CONFIDENCE IN THE ELECTION.

WELL, THAT’S THE CYNICS.
THAT’S THEIR JOB, TO BE CYNICAL.

GOOD.
WELL, LET’S GO TO NOT A CYNIC.
WILLIAM JR. HOSTED THIS PROGRAM FOR YEARS.
IN JUNE OF 1974, TWO MONTHS BEFORE HE BECAME PRESIDENT, GERALD FORD WAS ON ‘FIRING LINE’ WITH WILLIAM JR.
WATCH THIS CLIP.

I’D LIKE TO BEGIN BY ASKING FORD, IN THE EVENT THAT YOU BECOME PRESIDENT, WOULD YOU GRANT AMNESTY TO EVERYONE INVOLVED?

I’M NOT SURE, BILL, THAT I OUGHT TO UNDERTAKE TO RESPOND TO A QUESTION OF THAT KIND.
IN THE FIRST PLACE, I DON’T ANTICIPATE BECOMING PRESIDENT AND TO SPECULATE IN SUCH A SENSITIVE AREA WITHOUT KNOWING WHO MIGHT BE ACQUITTED, I THINK WOULD BE PRESUMPTUOUS AND VILIFY.

OF COURSE, WE KNOW WHAT HAPPENED.
VICE PRESIDENT FORD WHEN HE BECAME THE PRESIDENT DID PARDON PRESIDENT NIXON.
MY QUESTION FOR YOU IS, IF WE ALL EXPECT A FLURRY OF PARDONS FROM PRESIDENT TRUMP, BUT GIVEN HIS OWN LEGAL JEOPARDY AND THE BROAD PARDONING POWERS OF THE PRESIDENT, HERE’S AN OPEN QUESTION ABOUT WHETHER PRESIDENT TRUMP COULD ISSUE HIMSELF A PREEMPTIVE SELF-PARDON.
NO COURT HAS EVER RULED ON THIS.
IF WE’RE TWO CONSTITUTIONAL LITIGATORS, DAVID AND TED, WHAT IS YOUR CONSTITUTIONAL OPINION OF THE PRESIDENTIAL POWER TO SELF-PARDON.
DAVID, TAKE IT AWAY.

I THINK YOU MAY HAVE FINALLY FOUND ONE AREA THAT TED AND I MAY ACTUALLY DISAGREE ON.
MY VIEW IS THAT HE CANNOT PARDON HIMSELF.
NOW, OF COURSE, EVEN IF HE DID PARDON HIMSELF, HE COULD ONLY PARDON HIMSELF FOR FEDERAL CRIMES, AND THE NUMBER OF CRIMINAL INVESTIGATIONS THAT ARE GOING ON ARE STATE INVESTIGATIONS.
BUT MY VIEW, TENTATIVE, BECAUSE THERE’S NO CASE ON IT, IS THAT HE CANNOT PARDON HIMSELF.

TED, DO YOU BELIEVE THE CONSTITUTION GIVES THE PRESIDENT THE POWER OF SELF-PARDON?

YES, I THINK THAT IT DOES.
THERE’S NO LIMIT ON THE PARDON POWER.
AND DAVID’S RIGHT.
IT WOULD ONLY, TO THE EXTENT IT DID EXIST, IT WOULD ONLY APPLY TO THE FEDERAL LAWS.
IT WOULDN’T APPLY TO STATE VIOLATIONS OF STATE LAWS, BUT I SEE NOTHING IN THE CONSTITUTION THAT LIMITS THE PARDON POWER.
YOU KNOW, DAVID AND I ARE DISAGREEING ABOUT THAT, BUT THAT’S ONE OF THE VERY FEW THINGS WE EVER DISAGREE ABOUT.

RIGHT.

HOW ABOUT, CAN THE PRESIDENT BE PROSECUTED AFTER HE’S OUT OF OFFICE FOR CRIMES HE MAY HAVE COMMITTED IN OFFICE?
FOR EXAMPLE, VIOLATIONS OF THE EMOLUMENTS CLAUSE, FOR EXAMPLE.

I DON’T THINK THE EMOLUMENTS CLAUSE IS A GOOD ONE BUT TO THE EXTENT THERE’S VIOLATIONS OF TAX LAWS WHILE HE WAS PRESIDENT OR VIOLATIONS OF OTHER LAWS OR OBSTRUCTION OF JUSTICE THROUGH THAT, YES, I THINK THAT ONE, THE PRESIDENT IS OUT, I BELIEVE HE COULD BE PROSECUTED WHILE HE IS PRESIDENT, I BELIEVE HE COULD BE PROSECUTED AFTER HE LEAVES THE OFFICE.
AND I REPRESENTED PRESIDENT REAGAN WHILE HE WAS BEING PURSUED IN CONNECTION WITH THE IRAN CONTRA AFFAIR.
WE FELT INDEED, A FORMER PRESIDENT CAN BE PROSECUTED CRIMINALLY ASIDE FROM THE PARDON.

I THINK IT’S IMPORTANT TO DISTINGUISH WHAT CAN BE DONE FROM WHAT SHOULD BE DONE.
I THINK THAT IN TERMS OF THE PROSECUTING DONALD TRUMP, WE’VE GOT TO KEEP IN MIND THE DANGEROUS PATH THAT WE GO DOWN IF WE BEGIN TO CRIMINALIZE OUR POLITICAL OPPONENTS.
I THINK THERE IS AN EXTRAORDINARILY HIGH HURDLE BEFORE, I THINK, ONE JUSTICE DEPARTMENT IS GOING TO WANT TO PROSECUTE A FORMER PRESIDENT, REGARDLESS OF WHETHER THERE IS A PARDON OR NOT.

DAVID, YOU HAVE SAID THAT PERHAPS THIS ELECTION IS THE MOST DIVISIVE IN THE NATION’S HISTORY, BUT 2000 WAS ALSO INCREDIBLY DIVISIVE, AND YET, OUT OF THAT MOMENT IN OUR HISTORY OF GENUINE AND ENDURING FRIENDSHIP BETWEEN THE TWO OF YOU WHAT IS YOUR ADVICE, BOTH OF YOU, FOR HOW TO HEAL THESE DIVIDES, HAVING PERSONALLY BEING THROUGH ON THAT CONTACT?

I THINK WE SHARE MANY THINGS AND THE VIEW WE’RE MORE ALIKE THAN WE ARE DIFFERENT IN THIS COUNTRY.
WE’RE BOUND TOGETHER NOT BY A COMMON RACE OR ANCESTRAL BAND OR COMMON LANGUAGE OR RELIGION.
WE’RE BOUND TOGETHER BY OUR CULTURE.
AND THAT CULTURE BINDS US TOGETHER BECAUSE IT IS A SHARED CULTURE AND WHAT WE NEED TO DO IS WE NEED TO WORK TOGETHER ON THOSE THINGS THAT WE AGREE ON.
FIGHT WHEN WE DISAGREE.
IT’S OKAY TO DISAGREE.
YOU DON’T HAVE TO BE DISAGREEABLE.
THIS DIVISIVENESS IS WORSE THAN 2000.
AND WE NEED TO HAVE HEALING.
WE NEED TO BRING THIS COUNTRY BACK TOGETHER AGAIN.

I’LL JUST SAY IT AGAIN, THERE’S SO MUCH THAT BRINGS US TOGETHER.
WE WANT, I THINK, MOST PEOPLE IN THIS COUNTRY WANT THIS COUNTRY TO SUCCEED.
WE WANT EQUAL RIGHTS FOR ALL PERSONS.
WE ARE AN IMPERFECT NATION.
WE WERE AN IMPERFECT CONSTITUTION WHEN IT WAS CREATED.
BUT WE’VE BEEN WORKING TO IMPROVE THAT.
I THINK IF WE THINK ABOUT HOW WE CAN IMPROVE OUR COUNTRY, OUR LAWS, OUR CIVIC SOCIETY, AND THINK ABOUT THAT RATHER THAN THE THINGS THAT DIVIDE US, THAT IS THE WAY WE NEED TO GO FORWARD.

WITH THOSE WISE WORDS, TED OLSEN AND DAVID BOIES, THANK YOU SO MUCH FOR JOINING US ON ‘FIRING LINE.’

THANK YOU, MARGARET.
IT’S BEEN A PLEASURE.

THANK YOU, IT’S BEEN GREAT TO BE HERE WITH YOU AND TED.

‘FIRING LINE’ WITH MARGARET HOOVER IS MADE POSSIBLE IN PART BY CHARLES R. SCHWAB AND BY —
CORPORATE FUNDING IS PROVIDED BY —