David Lillehaug, the former U.S. attorney for Minnesota, is, it’s fair to say, the least flamboyant practitioner on stage at the Al Franken-Norm Coleman election contest trial. 

He was born in South Dakota. Need we say more?

As one of Franken’s main on-stage litigators, he has shown a meticulous and disarming politeness, not the avuncular folksiness of his counterpart on the Coleman side, Joe Friedberg.

Friedberg, frequent defender of (alleged) murderers and other jail-dodging clients, is casual. Lillehaug, former aide to Walter Mondale, former lawyer to Paul Wellstone, is exacting.

Lillehaug and his Seattle-based colleague Kevin Hamilton have shared cross-examination of Coleman’s witnesses the past five weeks. They’ve done it with smiles on their faces and cold-blooded precision.

On the rarest of occasions, the normally unflappable Lillehaug -- who himself has been considered a solid Senatorial candidate -- has shown some emotion, such as during last Friday’s hearing about Coleman’s side wanting to back out of a stipulation.

So, it was in his own painstaking manner that Lillehaug this morning created the trial’s most O.J.-like scene.

It was a pleasure to watch. And, of course, fun, too.

The envelope

There was a method to his thoroughness with Minneapolis Elections Director Cindy Reichert.

Of course, one of the major controversies of this recount has been the so-called missing 133 ballots from a University of Minnesota-area precinct. They were lost when, it seems, one envelope of five Tyvek envelopes being transferred from the precinct to the city’s elections warehouse somehow disappeared.

Tyvek is that shiny, thin, white material that special envelopes are made of and that important mail comes in. They’re strong. They’re water-resistant.

For a while now - and again today in court - Reichert said that the ballots surely once existed and now are lost. Even Coleman lawyer Friedberg acknowledged that today. But the Coleman side won’t concede as to the numbers of ballots that may be in the missing envelope. And, in court today, it was determined there were 132 ballots in there, not the long-reported 133.

They’re important to Franken because he has a net-plus of 46 votes in the tally from the missing ballots, according to the election machine tapes of Election Night.

But who could have imagined that Lillehaug, the one-time chair of the Crosstown Conference of the Minneapolis Synod of the Evangelical Lutheran Church in America and a former member of the Church Council of the Edina Community Lutheran Church, would remind us of  the late, great and theatrical Johnnie Cochrane?

“If it doesn't fit, you must acquit,” was Cochrane’s legendary line to the jury about O.J. Simpson’s alleged murder gloves.

The only thing Lillehaug and Cochrane would have in common is their law degrees.

Still, today, Lillehaug produced a similarly demonstrative fit-acquit example for Reichert and the Judges Elizabeth Hayden, Kurt Marben and Denise Reilly. The jurists, too, seemed thoroughly tickled by his presentation and what it seemed to prove.

“Now, I’d like to show you a couple of Tyvek envelopes,” he said calmly to the witness and the court. “They are not from the city of Minneapolis. They are merely for illustrative purposes.”

Now catch how thorough the man was.

“They were purchased this morning and they were manufactured by a local company, Quality Park Products in St. Paul, Minnesota,” Lillehaug said, turning to the judges, who were impressed and smiling. “And, by the way, Tyvek is the registered trademark of the DuPont Corporation.”

A key fact, of course.

As he approached witness Reichert, about 15 feet away, he passed Friedberg, who didn’t object to the demonstration.

“I would feel unpatriotic,” Friedberg said.

Lillehaug asked Reichert about her familiarity with such envelopes. Yes, she said. But the ones that are missing might be bigger.

He asked: The material is the same, yes? Yes, she said.

“Now, Ms. Reichert, I’d like you to take the two envelopes and put your hand on one side of them and one hand on the other and rub them together,” Lillehaug said.

She did so. You could hear the shhh-shhh-shh-shhing on her microphone. The recount had been reduced to an election official rubbing two envelopes together.

(A genie did not appear.)

“How would you characterize the interface between the two envelopes?” Lillehaug asked robotically.

“They are slippery,” she said, with a grin.

“They are slippery envelopes?” he repeated.

You betcha.

Now, if Lillehaug were Cochrane, he might have turned and said to the judges: “If the Tyvek does not adhere, you’ve got to send my pal Al to D.C. some time this year.”

But Lillehaug is not Cochrane, so instead, he victoriously continued on, strutting as much as his personality allows him to strut and showing that it was perfectly possible that someone carrying five Tyvek envelopes under his or her arm from one place to another might have had the misfortune of one slipping away from the others.

Lawyers have long spoken of slippery slopes. But legal history may have been made on the topic of slippery envelopes today.

It was a charming and important moment: While the exact number of ballots may still be up in the air, the way in which they could have gone missing was rendered plausible.

It even gained the hard-won admiration from Coleman legal spokesman Ben Ginsberg, who, nonetheless, repeated his description of this recount as a “re-guess.”

Of the Tyvek demo, Ginsberg said: “I think there are many things that are slippery. Envelopes might as well be among them.”

Other matters

More votes likely to be counted: Late today, the judges issued an order (PDF) - approved by both sides - instructing election officials statewide to re-examine about 1,500 absentee ballots for voter registration documents.

Some voters may have placed their registration materials in the so-called “secrecy envelopes” that also include their ballots.

That’s technically a no-no, but the judges and both sides believe if the person’s registration form is in there and the ballot is otherwise correctly filled out, then those votes should count.

Both sides expressed their pleasure with the ruling.

Duluth ballots: There was some news about the 300 or so “illegal” ballots that the Coleman campaign displayed Wednesday.

Today: Pamela Howell, the Republican election judge whose testimony was stricken from the record Wednesday, is expected to resume testimony. The judges changed their minds on a ruling today.

Also today, a major legal argument is on tap. It responds to a Coleman legal motion of last week for the judges to, essentially, take another look at their ruling of Feb. 13, which limited the ballot categories that the panel believes are legal.

The Coleman side wants the judges to dive into the 280,000 or so absentee ballots that have already been counted and ponder how to “uncount” some of them; Coleman’s side says some of the counted votes have been rendered illegal by the Feb. 13 ruling.

It’s a mechanical impossibility to uncount -- it’s impossible to match up absentee ballot envelopes with the votes because they have been counted and become part of the total pile of votes.

But, if the judges buy some of Coleman’s argument, it could take the trial on a whole new path of examining accepted votes as well as rejected absentee ballots, which has been at the heart of Coleman’s effort to overturn Franken’s 225 vote recount lead.

Jay Weiner can be reached at jweiner [at] minnpost [dot] com.