Sometimes a turning point occurs right before your eyes and you don’t see it. A perfect storm heads your way and you don’t feel it.
This is why Ben Ginsberg is good at what he does. Ginsberg is a lawyer and the trial spokesman for the Norm Coleman side in the recount trial that concluded its eighth day today. He is, as we’ve written, the “prince of darkness” for Democrats, the spinmeister from Hell, the guy who developed talking points for Swift Boaters and who was deeply involved on the Bush side in Bush v. Gore.
Ginsberg hasn’t earned the wrath of the opposition because he’s bad at what he does. You may not agree with him and the candidates or causes he represents, but this alleged evil doer is – to use a technical term – a smart cookie in marvelous pinstriped suits, with a wry sense of humor, a photographic memory and an uncanny ability to laser his client’s message.
Today seemed relatively uneventful. To be perfectly honest, reporters spent much of it in a makeshift media room watching the proceedings on television, writing stories and Twitter tweets and munching on Twizzlers.
It sure seemed boring.
But, when court ended about 4:30 p.m., Ginsberg emerged from the courtroom, came out verbally swinging and declared – much to the surprise of the shrinking but jovial trial media corps — that, even if none of us realized it, we were in the midst of a tectonic shift, “a turning point.”
Reporters love turning points. It’s enough to make us drop our Twizzlers. And if Ginsberg says we were within the ZIP Code of one, we might as well listen.
First, he said, Tuesday’s court decision to allow about 4,800 ballots into evidence was huge for Coleman and “a major blow” to Franken.
Note 1: Earlier in the week, the Coleman team wanted about 11,000 ballots to be considered.
Note 2: All 4,800 ballots won’t be counted.
Note 3: Some other Coleman claims contesting 171 “found” ballots in Maplewood and the 933 votes counted by the State Canvassing Board have been dropped, causing Franken lawyer Marc Elias to describe Coleman’s case as “shrinking.”
Still, Ginsberg said after court today that the Franken campaign is “deathly afraid of enfranchising those 4,800 Minnesotans in counting those votes.” The implication: There are more Coleman votes in there than Franken votes.
Second, this afternoon, Franken lawyer David Lillehaug, in a vigorous and exacting cross-examination of Washington County elections official Kevin Corbid, showed that election officials in that county made numerous mistakes.
They didn’t inspect final tallies. They might have lost ballots.
“We’ve felt all along that’s something that should be investigated,” Franken’s lawyer Elias said of missing ballots statewide.
Corbid, in his second trying day on the witness stand, was thoroughly sliced and diced by Lillehaug, if in a gentlemanly fashion. A Coleman claim that duplicate counting may have occurred in Washington County also seemed to be punched.
Ginsberg saw it this way: Lillehaug showed disrespect to election officials, the same officials the Franken campaign has for so long praised for their good, decent and accurate work.
“What you have now seen today was Mr. Lillehaug’s attempt to denigrate the results of the election,” Ginsberg said, adding that Lillehaug’s cross-examination was a “symptom” of the turning point.
Back to that turning point.
Ginsberg, in his triptych of talking points, said the Lillehaug cross-examination goes “hat in hand” with what’s on tap for Thursday morning.
That’s an argument before the Minnesota Supreme Court at which Elias will seek an election certificate for Franken so the Democratic challenger can be seated in Washington, pending the outcome of this trial. He’d take Coleman’s vacant seat.
Weeks ago, the Franken campaign went to court to attempt to get the Democratic challenger his election certificate.
The point: Minnesota should have two U.S. senators. The U.S. Constitution says so. While this trial drones on, and until the three-judge panel rules, Franken should be awarded the election certificate he won by edging Coleman by 225 votes, according to the State Canvassing Board.
Earlier today, Judge Denise Reilly of the trial’s three-judge panel indicated from the bench that we may have weeks or months of testimony ahead of us.
Today, the Coleman side offered into evidence about 200 ballots and withdrew a few that they agreed shouldn’t be counted. It took most of the day, and there’s more to do with Washington County Thursday.
That leaves only 86 counties to go.
That could mean months of one U.S. senator for Minnesota.
So, even though state law seems to say that no certificate should be issued until such a trial ends, Franken lawyer Elias, a smart guy himself, is prepared to argue otherwise, claiming that Secretary of State Mark Ritchie and Gov. Tim Pawlenty have “failed to meet their obligations under federal law. We believe they failed to meet it under state law.”
Elias says what he’ll be asking for is “quite modest.”
But Ginsberg says this is the third stake in the demarcation of a turning point, a point at which the Franken team is displaying “desperation” and trying to “short-circuit Minnesota law.”
(Again, under this reporter’s nose, there wasn’t a whiff of desperation in the air. Just the aroma of Twizzlers. But different noses smell different things.)
Ginsberg agrees with Elias that Minnesota should have two senators. One is immovable. Her name is Amy Klobuchar.
But Ginsberg wants Coleman. Elias wants Franken.
“The decision [to include 4,800 ballots] shows very much why the outcome of this election is very much in doubt,” Ginsberg said.
And there’s the turning point. On this day, at this juncture, Ginsberg seemed very much believable.