11/17/2004

TURLEY: You know, I was surprised on the morning after

MSNBC - 'Countdown with Keith Olbermann' for Nov. 9Jonathan Turley, professor of constitutional law at the Law School at George Washington University.

Jonathan, good evening.

JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY: Hi, Keith.

OLBERMANN: The states start reporting their electoral slates, the Electoral College, on the 7th of December. Is that the drop-dead date in terms of everything? If there was fraud, you have to prove it before then or it ceases to matter?

TURLEY: Well, the December 7 date is when you essentially certify your electors under a federal law that was passed in one of our earlier debacles. And it gives a presumption of legitimacy to your votes. And then, on the 13th, the electors actually vote.

But those votes are not opened by Congress until January 6. Now, if there are controversies, such as some disclosure that a state actually went for Kerry, there is the ability of members of Congress to challenge. It requires a written objection from one House member and one senator. And then, if that objection is recorded, then both Houses separate again and they vote by majority vote as to whether to accept the slate of electoral votes from that state.

OLBERMANN: Let‘s reduce the partisanship level that‘s unavoidable because one side lost and one side won this year and make this next question into a theoretical.

Winning candidate A is inaugurated in year X. Six months later, two years later, whatever, there comes definitive proof, confessions, convictions, videotape, DNA evidence, that people working for candidate A literally changed the vote in the electorally decisive states, say on his personal instructions in writing, something ridiculously transparent like that. What happens then?

TURLEY: Well, the definition of the president of the United States is technically the guy that took the oath of office on January 20. And so the question would become after that point the removal of the president.

Now, a president can only be removed for death or incapacity or through impeachment. You can only be removed through impeachment if you can show the president knew of such a criminal conspiracy. If there‘s no evidence of his personal knowledge or involvement, you can‘t satisfy that constitutional standard. And so what you have is a very disappointed senator B.

OLBERMANN: That‘s presuming it‘s a senator in our hypothetical.

TURLEY: Yes.

(LAUGHTER)

OLBERMANN: Let‘s get back to this one, this election. In Florida, in Ohio, from what you‘ve done to examine both states and their voting returns, do you think there is enough evidence to justify legal action, recount, contested election? And is John Kerry the only person who could legally cause one of those things to happen?

TURLEY: You know, I was surprised on the morning after. I was still on the air around 6:00 a.m. with CBS when the results came on. We went off the air at 6:00 a.m.

And, at that time, we believe that there was a margin. If you included both the provisional and the absentee votes and you also looked at some of these pockets of votes that were being challenged—it‘s a mistake just to talk about provisional ballots. Ohio was rife with allegations. There was litigation over pockets of votes. We also saw that in other states during the day. There was far more litigation than was indicated in the news programming.

And so when you look at provisionals, then absentees and then those pockets of votes, yes, there probably is enough of a margin if things broke for Kerry that he could turn the state. Is it likely? No. But it is not impossible. So when Kerry came out that morning and said, oh, it is impossible I could win Ohio based on the provisionals, it was a very narrow view. And I think it was designed to satisfy Democrats that were upset that he didn‘t fight more.

Also, remember, over 70 percent of Ohio‘s votes were done with punch cards. And we know that when you do a challenge to those, they tend to turn over. So there was room for challenge in that and other states.

OLBERMANN: Could there still be one?

TURLEY: Well, there could. But without the candidate, judges don‘t really work as hard.

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