>> What do the two superstar litigators from Bush v. Gore say about this election?

This week on "Firing Line."

>> [ Chanting ] Bush!

Bush!

Bush!

>> The year was 2000.

>> [ Chanting ] Recount!

Recount!

>> 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 Olson 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.

>> [ Chanting ] Count every vote!

>> But Boies and Olson went on to become friends, even working together on another landmark case.

Today the nation is bitterly divided again.

>> [ Chanting ] We got Trump out of here!

>> And President Trump refuses to concede to President-elect Joe Biden.

What do David Boies and Ted Olson say now?

>> "Firing Line with Margaret Hoover" is made possible in part by... Corporate funding is provided by... >> Welcome to "Firing Line."

David Boies and Ted Olson, 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 gonna be sworn in as President of the United States.

>> And, Ted, do you agree?

>> I always agree with whatever David says.

>> [ Laughs ] >> And in this case, of my own mind, I would agree.

>> If we were to go back in time 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, the Vice President Gore side, lost, you would unite behind President Bush.

Now, Vice President Gore did concede a day after the Supreme Court's 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 move on and to try to unite the country behind then President Bush.

>> Ted, my question for you is different.

Justice Sandra Day O'Connor, who was appointed by President Reagan and ruled in the majority on that case said later... ...citing that it gave the court a less-than-perfect reputation.

Do you think that the decision harmed the court?

>> Well, 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 is a winner and there is 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 a 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 statesmanlike thing for him to do.

>> But 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 that 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 20 5-4 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.

>> In 2000, David, it took 36 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 filed.

Five of them have been rejected or dropped.

Nothing has been filed that would change the outcome of the election.

>> Right.

>> What kind of legal action, David, if you were the strategist for the Trump campaign, would President Trump need to pursue that would 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 that there is not a lawsuit there to be bought.

And I think if I were contacted by President Trump, that's what I would tell him.

>> Do you see a discernable strategy, Ted, in their legal actions?

>> 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 discernable 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.

It's 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 to Theranos.

And you're on the record saying that you would have represented President Trump against Special Counsel Robert Mueller.

>> Yes.

>> The Lincoln Project is going after attorneys representing President Trump right now, you know, publicly criticizing them, saying that... Is it wrong, David, for the lawyers to be attacked who are representing President Trump in these cases, which you have said don't have validity?

>> I think it is misguided, indeed dangerous, to try to demonize lawyers because of the clients that they represent.

I think that every lawyer has a responsibility to make sure that the lawsuits that they bring, the claims that they assert in court, are plausible, reasonable, good-faith claims.

But I think it 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 out.

That's the way these things ought to be resolved.

We ought not to be discouraging people from going to court.

Going to court is the right way to resolve disputes, much better than in the streets, much better than on social media.

So, the idea that we try to demonize people for taking cases to court, I think, is wrong.

If they bring frivolous lawsuits, they can be sanctioned for that.

And I think some of the lawsuits that 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 that they ought to leave the law firm because they're representing somebody who is disliked is a really dangerous precedent.

I started representing civil-rights cases in the 1960s, with the Lawyers' Committee for Civil Rights down in Jackson, Mississippi.

And one of the reasons that I had to go down there and 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.

>> Ted, what do you think about The Lincoln Project attacking the lawyers who are 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 have been filed in 6 states, and the Republican election lawyer, Ben Ginsberg, who you worked with on Bush v. Gore, has said that he has seen no evidence that elections were fraudulent or the results were rigged.

Are there any other cases or allegations that you are following that you suspect could have legal merit?

>> I have not seen -- And I read what Ben Ginsberg has been saying with respect to these cases.

And I followed these cases, but only from a distance.

From what I've read in the paper, I've seen on the broadcast networks and so forth, I have not seen systemic, widespread evidence of fraud or abuse.

Obviously, from time to time, someone casts a ballot that they may be not entitled to cast or something like that.

Every once in a while, you see some wrongdoing by some misguided person who's not counting ballots properly.

But I have not seen anything that's 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 each predict the Trump campaign's legal efforts will play out against the backdrop of the states' election certification deadlines?

In other words, is President Trump out of options if a disputed state certifies its election in favor of Biden and meets its safe harbor deadline, which is December 8th, the date that election disputes must be resolved?

Ted, to you.

>> Well, I do think that 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 on 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 that certification, if it is within the safe harbor and it's consistent with the rules that were in effect on election day, that 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.

His concession means a lot to this country.

It means a lot to this country to have the outgoing, defeated candidate concede and support the winner.

That's quite important to us as a political body.

But as a legal matter, he can't hold back the tide.

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 it or not.

>> Many Americans are receiving a civics lesson right now, as they are learning that the Constitution specifically delegates the power to choose electors to states and state legislatures.

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 send a different slate of electors to Washington, D.C., to vote for President Trump instead of Vice President Biden.

This, admittedly, has seemed like a very far-fetched 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 think that -- I agree with what David has said about the irrelevance of conceding, but I believe that most elected officials in this country believe in the rule of law, believe in the Constitution... >> Yes.

>> ...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 let's give this president an opportunity and let's support -- we can have policy differences, but let's support the process by which he was elected and then come together to the extent that we possibly can.

>> I agree completely with Ted that 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 states, but it gives the timing of the choosing of the electors to Congress.

And Congress selected November 3rd as the time to choose electors.

And 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 gonna appoint electors after the election day that was 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 have 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 100 years has done.

I think that would be a mistake for him.

I think that would hurt the country.

And I believe that -- I believe Donald Trump does love this country.

I believe he's committed to this country.

And I hope he sees that refusing to concede is gonna 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 this country, which is to put the country above their own sense and sensibilities and pledge their allegiance to the new president.

>> Ted, do you believe that Donald Trump loves the country, as David just suggested, 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 facetious about this.

I wonder what he would have done on his television show called "The Apprentice" if he had said someone was fired and that that person did not walk off the stage and accept the firing.

This president, as I read the election returns, has been fired.

And the date for his termination is January 20th, as David said.

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."

>> Alright, so, the Justice Department's top election crimes prosecutor resigned this week after Attorney General William Barr told federal prosecutors that they should examine allegations of voting irregularities before states move to certify the results.

David, to you, does this seem that Attorney General Barr is playing politics to give cover to the president and his supporters who are casting doubt on the election results?

>> I think it's very concerning.

And I think the reason you saw that resignation is that this is not merely business as usual.

This is an attempt to turn the Justice Department really into an arm of the Trump campaign.

And that is deeply troubling to anyone who cares about our justice system or 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've worked with him.

I have respected him.

I've been against him in lawsuits and so forth.

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 itself.

I think we ought to wait until the proof is in before we make judgments about that.

>> The letter that Barr issued, of course -- you know, many can agree it was very straightforward.

But the part that was curious is that it was -- it seemed to be replicating and giving cover to the president's political allies, who some -- the cynics would say are seeking to undermine confidence in the election.

>> Well, that's the cynics.

That's their job, to be cynical.

>> [ Laughs ] Good.

Well, let's go to not a cynic.

William F. Buckley Jr. hosted this program for 33 years, from 1966 to 1999.

In June of 1974, two months before he became president, Gerald Ford was on "Firing Line with William F. Buckley Jr." Watch this clip.

>> I should like to begin by asking Mr. Ford -- in the event that you become president, would you grant amnesty to everyone involved in the so-called Watergate affair?

>> 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 convicted and who might be acquitted, I think, would be presumptuous and ill-advised.

>> Of course we know what happened.

Vice President Ford, when he became the president, did pardon President Nixon.

My question for you is -- We all expect a flurry of pardons from President Trump.

But given his own legal jeopardy and the broad pardoning powers of the president, there's an open question about whether President Trump could issue himself a preemptive self-pardon.

No court has ever ruled on this.

You know, what is -- For 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 the one area that Ted and I may actually disagree on.

>> [ Laughs ] >> 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 a number of the criminal investigations that are going on are state investigations that would not at all be affected.

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 that 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, very few things that we ever disagree about.

>> Yeah.

Right.

>> [ Chuckles ] How about -- Can the president be prosecuted after he's out of office for crimes he may have committed in office, for example, alleged... >> I believe so.

I -- >> ...violations of the Emoluments Clause, for example.

>> Well, I don't think the Emoluments Clause is a good one, but to the extent that there are violations of the tax laws while he was president or violations of other laws or obstruction of justice -- there's been issues about that -- yes, I think that when the president is out of -- I believe that he could be prosecuted while he is president.

I believe that 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, and we looked very closely at this issue.

And we felt that, indeed, a former president can be prosecuted criminally, aside from the pardon issue.

>> I think it's important to distinguish what can be done from what should be done.

I think that in terms of 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 that 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.

>> Yes.

>> And yet out of that moment in our history, a genuine and enduring friendship between the two of you burgeoned.

What is your advice, both of you, to the nation for how to heal these divides, having personally been through 2000 on opposite sides of that contest?

>> I think -- And I think Ted will have his views, too, but I know that we share many things and we, I think, share the view that we are more alike than we are different in this country.

We're bound together not by a common race or even ancestral land 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.

But you don't have to be disagreeable.

This -- This divisiveness is worse, way worse than 2000.

And we need -- And we need to have the healing.

We need to bring this country back together again.

>> Ted, how do you think the country can become more united in the wake of this election?

>> David said this, so I'll just say it again.

There is 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 towards 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 Olson 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... Corporate funding is provided by... ♪♪ ♪♪ >> You're watching PBS.