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Title: Summary of Interview with Barry Richard
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Permanent Link: http://ufdc.ufl.edu/UF00067391/00001
 Material Information
Title: Summary of Interview with Barry Richard
Physical Description: Book
Language: English
Publication Date: October 10, 2002
 Notes
Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
 Record Information
Bibliographic ID: UF00067391
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 33

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COPYRIGHT NOTICE


This Oral History is copyrighted by the Interviewee
and the Samuel Proctor Oral History Program on
behalf of the Board of Trustees of the University of
Florida.

Copyright, 2005, University of Florida.
All rights, reserved.

This oral history may be used for research,
instruction, and private study under the provisions
of Fair Use. Fair Use is a provision of United States
Copyright Law (United States Code, Title 17, section
107) which allows limited use of copyrighted
materials under certain conditions.
Fair use limts the amount of material that may be
used.

For all other permissions and requests, contact the
SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida









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FEP 33
Barry Richard
Summary of Interview (October 10, 2002)

Pages 1-4
Richard gives background to being chosen as counsel for Bush legal team. He says he
would also have been Gore's attorney--if asked. He explains that because he was hired
his large legal firm (Greenberg Traurig) was also hired--as a matter of course. He
states that he coordinated all the legal activities on the state cases and Ted Olsen
handled the federal appeals. He describes the first meeting with Ben Ginsberg and Jim
Baker and others on the Bush political team about his (Richard's) view of the beginning
lawsuits, Florida courts, and strategy regarding recounts. He talks about the three times
that George Bush called him during the thirty-six-day process.

Pages 4-8
Richard speaks of how impressed he was with Ted Olsen's knowledge of constitutional
issues. He details how the Bush team consisted of legal strategists (which Richard
headed) and political strategists and their respective plans. He recounts bringing in
additional lawyers to handle the forty-seven different state cases. Regarding the
number of cases, he says, "I like a high pressure situation. I like the organization and
the management." He talks about having emergency hearings "because issues were
coming up on the spot." He argued different cases on the phone almost simultaneously
with different judges. He talks about how few strategy sessions the Bush team had--
compared to the number that the Gore team had. He had to update Baker every day
who then updated George Bush. He recalls only two strategy sessions: just before
appearing before Judge Sauls and just before Judge Middlebrooks. He say he "never
assumed" that this case would end up before the U.S. Supreme Court because "it was a
long shot" and the Bush team had "no assurance that they [U.S. Supreme Court] would"
(agree to hear the case).

Pages 8-12
Richard considers the butterfly ballot as being "valid" and "technically correct." He
describes the hearing (by telephone) before Judge LaBarga in Palm Beach about the
butterfly ballot. He adds that had the Florida Supreme Court ruled in Gore's favor on
the butterfly ballot it could have "elected Gore president." He continues on this same
issue by saying there were five decisions in which the Florida Supreme Court could
have ruled in Gore's favor that would have made him president--but that court did not
rule in his favor. In recalling the butterfly ballot and the number of over-votes in Duval
County, he considers elections as being "a messy business" with "screw-ups" and much
confusion.

Pages 13-17
Richard recounts how the Gore team's strategy was to get Palm Beach to adopt a more
liberal standard in the recount. He discusses Baker's decision to file in federal court an
emergency injunction to halt the recount because filing in a federal court had a "broader









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reach." He cites the use of the "equal protection" clause as being part of the brief (filed
in Middlebrooks's court) "to cover all of the federal constitutional issues in that case to
preserve them." He explains the "safe harbor" date of December 12 and its implications
and also gives a brief history of the controversial 1876 presidential election.

Pages 17-21
Richard recounts Harris filing a suit with Florida Supreme Court to stop the recount and
consolidate all the cases in Leon County. He says she did that without the Bush team's
knowledge and therefore Harris was not the "stalking horse" for the Bush team. He
explains that his legal team never knew what Harris's office was up to--"she was acting
absolutely independently." Bush legal team members had orders not to contact Harris's
office "unless it was the lawyers on a strictly professional basis within the case." He
assesses Harris's performance: "She was obviously personally partisan. But I think
she took a lot of abuse she didn't deserve. I think she was clearly within the scope of
the law." He addresses Judge Lewis's decision giving Harris some discretion. He
considers Judge Lewis "one of the brightest judges on the bench." He brings up the
semantics issue of "may" and "shall" regarding certification and says that "we read
things into them."

Pages 21-24
Richard discusses why Gore probably did not go to the contest phase sooner than he
did: "Nobody knew the consequences of what was happening. We had no road map
here." He emphasizes that the Gore team was probably dealing with "the psychology of
the certification having taken place." He says that the Gore team was "fighting time,
and they didn't want to end up in the state legislature before the state governor or
before Congress. They wanted this decided by the state courts." He also comments
that during this litigation there was "a press conference battle going on between Baker
and Christopher." He adds that Gore needed "to keep the support of the Democratic
Congress" so he would not be considered a sore loser and to keep open his prospects
for a future run at the presidency. He feels that the only way Gore could have made
any headway was if the Florida Supreme Court had "adopted standards" but that would
have meant they were changing the rules.

Pages 24-28
Richard comments on Baker talking about the Florida Supreme Court as an activist
court but he does not convey those feelings toward the U.S. Supreme Court. He adds,
"I wouldn't call anybody hypocrites in this thing." He does not think the U.S. Supreme
Court's decision as being "activist." He tries to stay out of the political realm of the post-
election process. He gives his opinion about the crux of the Fourteenth Amendment
issue which he feels was totally valid to use: "Every person in this state has to have an
equally weighted vote." He speaks about both legal teams wanting to know the political
affiliation of every lawyer and judge because everyone was thinking "politically." He
adds that "there was not a high comfort level [among the Bush team] with the fact that I
was a Democrat" and also "that I was an outsider with a close group of Washington
lawyers." He speaks about the Bush team decision not to let him argue before the









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Florida Supreme Court--but the team relented and gave him five minutes to argue along
with Mike Carvin--which "catapulted" him (Richard) "into a more prominent position." He
recounts the courtroom scene with Carvin floundering in details and the Gore team
"appealing on high principle."

Pages 28-30
Richard discusses the Florida Supreme Court's 7-0 ruling against Bush and the court
establishing the November 26 deadline. He states that he feels the Florida Supreme
Court gave him "some slack" after Carvin spoke. He adds, "I was able to articulate a
little bit of a principled posture, which is 'separation of powers' and 'this is the job of the
legislature.'" He comments that in the end the court "had simply come down on the side
of what they saw as a principle over a super technical interpretation." He adds that the
"basic philosophy" was that can "the public be given the maximum opportunity to be
heard without doing undue damage to the system." He says that the Florida Supreme
Court was "making law when they didn't accept the statute for what it said," that is,
changing the deadline date to November 26.

Pages 30-33
Richard takes up the issue of politics entering a judge's ruling. He is more concerned
with "the judge's intelligence." He likes to think that judges rise above the political
implications. He says that Judge Sauls "did a good job in that trial" and "he kept it
moving." He describes the discrepancy between the Bush political team wanting to
delay the case but the Bush legal team did not want to cause delays. He talks about
telling Judge Sauls that Boies was "asking for the remedy [counting the votes brought
up from South Florida] before [Boies] proves he has a case." He recalls getting "very
animated" and adds, "I never lose my temper in court, but sometimes it doesn't hurt to
look like you're losing your temper." He speaks about expert witnesses and says
"experts are always the risks for lawyers."

Pages 33-37
Richard cites the Harris v. Palm Beach County decision. He states that Boies "was
trying to argue that... the protest and the contest were entirely disconnected." He
counteracts that argument and says that "it doesn't make any difference whether [they
are] connected; once that judgment was made, you don't pretend it never happened."
He explains that the election "statutes were not written for this kind of race. They were
written for local races." He argues that the Democrats did not bring in one witness to
say that "a single machine didn't work right anywhere." He adds that the Gore legal
team had not "proved anything." He comments on deciding to put Judge Burton on the
stand. He says, "My take was, this [Palm Beach County Canvassing Board's recount]
was his baby, and he was going to defend their product."

Pages 37-43
Richard describes the differences in the handling of cases: Gore was very hands-on
and thinking politically and Bush team acted on its own and thought legally. He gives
reasons why the Florida Supreme Court had jurisdiction in this case. He speaks about









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Judges Lewis and Clark saying that what they both "liked about [my] arguments and
that I was never reluctant to concede issues. But you have to know when you can
concede it without undermining your case." He states that the Florida Supreme Court's
4-3 decision helped the U.S. Supreme Court in its 5-4 decision because had it been 7-0,
it would have made it more difficult for the U.S. Supreme Court to rule. He comments
on Chief Justice Charles Wells's dissent: "probably the strongest dissent in the history
of that court." He analyzes all the justices' positions on the Florida Supreme Court
regarding this 4-3 decision. He brings up the subject of the need for standards being
set by the Florida Supreme Court, but the Catch-22 follows: if the Florida Supreme
Court set a standard, then it would have been changing the law; it the court did not set a
standard, the Democrats would have lost.

Pages 43-46
Richard presents his view about the Seminole and Martin counties' controversy--
supervisors of elections in those two counties permitting Republicans to put
identification numbers on applications for absentee ballots: he thinks it "was a tempest
in a teapot." He adds that "it was a violation, but it was not something that should result
in people's votes being [thrown out]." He states he "was a little bit surprised" that the
U.S. Supreme Court granted certiorari. He knows the U.S. Supreme Court felt the
Florida Supreme Court should have explained itself regarding the change in rules. The
U.S. Supreme Court saw this issue in terms of "equal protection"--"seven of them said
they felt that there was an "equal protection" argument." He says that the Bush team
did not argue the "equal protection" argument "because we took it off the table."

Pages 46-48
Richard feels that the U.S. Supreme Court "has traditionally stepped in when there has
been a significant dispute between the other branches of government, or between the
states and the federal government, that really requires their attention." He adds, "I think
if the United States Supreme Court had refused to step into this case, it would be
criticized historically in future years as being a lack of courage on their part to look at
the case." He states that this case "involved every branch of government and both
levels of government. It was as fundamental as you can get."

Pages 48-53
Richard says to never underestimate the "resilience of the American public. .. I think
people believe that our fundamental institutions are sound, and the Supreme Court is
the Supreme Court." He continues that "elections are a messy business; democracy is
a messy business. ... I mean every court accepted the decision of every higher court.
Every lawyer accepted the decision of the next level of court. Every politician accepted
the decision." So, he says, the system works. He feels that the media's "reporting was
very fair." He remarks on each legal team's cooperation with each side. He discusses
the controversial military votes but was not involved in that issue. He addresses how
this post-election process impacted his life: "It was the most fun I've ever had practicing
law"--"an invigorating experience." He discusses what he charged for these litigations.




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