Ben Ginsberg

>> A Republican super lawyer and his stand against the Big Lie this week on "Firing Line."

>> We will never concede.

It doesn't happen.

You don't concede when there's theft involved.

>> As the January 6th Committee presents its case about President Trump's attempt to overturn the 2020 election... [ Gavel bangs ] ...can America prevent it from happening again?

Ben Ginsberg has served as a Republican election lawyer for nearly four decades.

>> The fact is that Governor Bush and Secretary Cheney have won Florida.

>> He worked for George W. Bush during the 2000 Florida recount of the race against Al Gore, but broke from Trump's GOP in the lead-up to the 2020 election, warning that false claims about election fraud were undermining faith in American elections, a point he made again when he testified.

>> In no instance did a court find that the charges of fraud were real.

>> As Trump continues to spread the Big Lie, can we restore faith in our elections, protect election officials, and defend our democracy?

What does Ben Ginsberg say now?

>> "Firing Line with Margaret Hoover" is made possible in part by... And by... Corporate funding is provided by... >> Ben Ginsberg, welcome to "Firing Line."

>> Thank you.

>> You've been a Republican election lawyer for decades, perhaps most famously known for your role in the Bush v. Gore recount in Florida in 2000.

And you have even provided some support to the Trump campaign in 2020 through your former law firm, Jones Day.

Most recently, you have become a vocal opponent from the Republican side of former President Trump's Big Lie.

And you testified in the select committee's January 6th hearings recently.

Why was it important for you to add your voice and expertise to those hearings?

>> I had spent my career working in elections.

I believe in American elections.

It's a basic part of the fabric of this country.

Peaceful transfer of power.

The winner gets to win.

It's too bad for the loser.

You try again.

Donald Trump really took elections to a different level by saying they were fraudulent and rigged.

I have worked in the polling places ever since I began practicing law and representing Republicans looking for fraud.

We found it on occasion.

It was prosecuted.

It is important to look for it, but at this point in time, you have to be honest about the evidence that's been compiled over the last four decades, which is there is not systematic fraud -- enough to affect the outcome of all but a small number of elections.

And to say that our elections are fraudulent and rigged, and to cause a sizable proportion of the American public to now not believe is our elections are accurate, is tremendously damaging to the democracy and something that I felt required really the telling the truth about what was found and pointing out, based on my 40 years of practicing election law, that our elections are accurate.

>> Through the select committee's hearings, we've learned that multiple people, including Attorney General Bill Barr, told President Trump that the claims of election fraud had no merit.

We've heard about the pressure campaign that was mounted against Vice President Pence to overturn President Trump's defeat.

We have learned about President Trump's efforts to pressure state officials to overturn the results of elections in their states.

Some members of the select committee have indicated that they believe there is enough evidence to warrant Justice Department investigation of former President Trump.

Take a look at this.

>> According to federal District Judge David Carter, former President Trump and others likely violated multiple federal laws by engaging in this scheme, including conspiracy to defraud the United States.

>> The judge evaluated the facts and he reached the conclusion that President Trump's efforts to pressure Vice President Pence to act illegally by refusing to count electoral votes likely violated two federal criminal statutes.

>> I have heard you say that you are doubtful that any of this will end in a prosecution.

But I haven't heard you say that you believe that Trump is innocent.

And my question for you is, regardless of whether you think it will happen or will not happen, have you, as a lawyer, seen evidence emerge that could support a prosecution?

>> I think that the evidence is still not complete to warrant a prosecution, that the piece of evidence that's needed, and the select committee may well produce it, is for Donald Trump to be saying specifically to the people who broke into the Capitol, who were the insurrectionists, "We want you to go do this.

I want you to go do this."

And so far, that key piece of evidence has not emerged.

>> He did stand before a crowd of individuals who then later breached the Capitol and pointed to the Capitol and said, "Fight like hell."

>> If he had said, "I want you to go down there, break into the Capitol, stop the proceedings of the Electoral College," then that would be the necessary piece of evidence.

But that's not what he said before the Capitol.

And in the 12-page explanation that he put out recently about why he thought the election was stolen, you could see the elements of a legal defense.

In other words, he thought that the election was stolen.

He thought that the certifications were improper, so that he was acting in that core belief.

So that's why the testimony of the committee that he was told and that he knew that he lost the election fair and square becomes an important building block in that evidence of intent.

>> Can you explain why it matters legally whether he believes his claims or not?

>> Well, because the way the law is written is that it's an intent crime.

You have to show that he had the intent to violate the law.

>> Attorney General Merrick Garland has said that he and his top prosecutors are watching the proceedings carefully.

And there is new polling from ABC and Ipsos that suggests 58% of Americans agree that Trump should be prosecuted.

Some of the potential charges that observers have discussed include sedition, insurrection, obstruction, wire fraud.

Of course, that's thanks to the $250 million that Trump and his allies fundraised off of the false claim the election was stolen.

Do you see any evidence for any of those crimes?

>> Well, there is the emerging evidence for some of them.

But again, I don't think the case is complete.

And once it gets to the Department of Justice, there's also such a thing as prosecutorial discretion, which is even if the crime was committed, is it in the best interests of the country to keep the polarization sort of thriving for something that would take many, many years to resolve?

>> And you come down on the side that a prosecution of a former president is undesirable.

>> A prosecution of a former president of the United States is about as serious as it gets, in terms of a criminal trial.

So that if you're going to proceed with a prosecution like that, the evidence has to be rock-solid.

And to date, at least in what's been in the public record, it is not rock-solid so that taking a defeat for a prosecution of a former president would reward terrible behavior.

>> One of the key figures that has emerged throughout the course of the hearings from the select committee is the lawyer, John Eastman, who advised President Trump that Vice President Pence could, in fact, reject the electoral votes, despite, according to witnesses, knowing that his legal case was dubious.

What do you think of John Eastman's role in events of January 6th?

>> John Eastman obviously played a big role.

There's evidence that he was asked to start trying to make this case in the immediate aftermath of the election.

He stuck with it despite hearing from many other lawyers that was -- that it was not an appropriate case to bring and that the case had no merit.

Yet he was the one who continued to tell former President Trump what he wanted to hear and to breathe life into the whole series of events that culminated in the break-in and desecration of the Capitol.

>> We learned from the committee that Eastman actually sought a presidential pardon in the days after January 6th.

Why do you think Eastman thought he would need a pardon?

>> Well, I think he saw that the coup attempt failed, and he knew what his role was in it.

I think that when you're in the tunnel enough to bring a case, like to suggest a legal theory like he suggested, then you're probably also thinking that when your political opponents are in power, they're going to come down like the wrath of God on you, which he was pretty correct about.

And so he asked for a pardon.

>> You spent decades working on behalf of Republicans.

Did you think you might have a special ability to persuade GOP election deniers of the truth because of your 40 years representing Republican candidates?

>> I guess that was something I would hope for.

I hope it's worked.

Republicans and conservatives like me have always believed in the rule of law and seen the rule of law as a fundamental part of the country.

Donald Trump brought, from Election Day onward, more than 60 cases to challenge the results of elections.

Those cases were all adjudicated.

Donald Trump had his day in court.

And the principle of the rule of law is that after you get your day in court -- you have the right to bring the cases -- but the principle is, is that you accept the decisions and move on.

>> Look, when you reflect on where the Republican Party is, how do you think we got here?

>> I think we got here, really, because the party was unsure of itself and which direction to take in 2016.

I think the party, as a whole, in its desires to win sort of went along with Donald Trump, warts and all.

>> Yeah.

>> And I think there was an inability or a lack of desire to see precisely what would come from that.

>> In 2000, the Florida race was separated by 537 votes.

There was a feeling amongst Republicans, that I recall, that Al Gore's rejection of the election result in Florida was destabilizing and unprecedented.

Conservative columnist Jonah Goldberg even wrote in the National Review at the time... At the time, did you think that Al Gore was trying to steal the election?

>> Look, I think that any candidate within 537 votes has a right, if not an obligation, to his or her supporters to be sure that the count is accurate.

So in bringing the actions that he brought, I never felt that he was precipitating a constitutional crisis or doing anything outside the bounds at all.

>> On December 13, 2000, the day after the Supreme Court effectively stopped the recount, Vice President Gore said, "I accept the finality of the outcome, and tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession."

How do you reflect on that now?

>> That it was absolutely the right thing to do, that I believe that if George W. Bush had ended up down 537 votes, he would have done the same thing.

Really tight elections will happen from time to time, and you have to play by the rules.

And that's what Richard Nixon did in 1960.

It's what Abraham Lincoln talked about in the letter the committee displayed in 1864.

It's what John Adams did in 1800 in the first transfer of power when Adams's party controlled the Congress, the presidency, and maybe most importantly, the Army.

But he said that the peaceful transfer of power is what matters.

And so only one president has not abided by that fundamental, core concept of our country and our democracy, and that's Donald Trump.

>> Politics makes strange bedfellows.

How have Democrats reacted to working alongside you now?

>> [ Laughs ] I would hate to speak on behalf of all Democrats in that, and I maintain my Republican affiliations.

I've -- I've not become a Democrat.

I just think that Donald Trump is wrong and the Republican Party is wrong on this issue of -- of election denial.

>> I want to look ahead to the elections coming up in November 2022 and beyond.

So far in this election cycle, Republican primary voters have nominated more than 100 candidates to statewide offices who promote or support, believe in Trump's Big Lie, this notion that Joe Biden didn't win the election, that Trump did, and that Joe Biden is not a legitimate president.

Candidates who support the Big Lie still, in many cases, have to face general-election voters in November.

Some will win, some will lose.

But the question I have is about whether our federal laws are currently strong enough to prevent elected officials who believe in the Big Lie from overturning the will of the people in 2024 when we vote for the president again.

>> It is -- It is a great question and really unfortunate that we have to ask it.

But we certainly do have to ask it.

So the truth is, most of the elections issues that come up are state-based, and so even in 2024, the certification of the electors who win is going to be state-based.

It then comes to Washington where one of the laws that does need changing and reform is something called the Electoral Count Act, which is how the Congress deals with the slates of electors that come to Washington.

That's a law that was written in the 1880s.

It's a little bit ambiguous in many, many places.

And there were issues that were raised in 2020 that need addressing, and there's a modernization of the language that needs to be done.

>> Let's talk about that.

I mean, we're all trying to understand how vulnerable our democracy is right now.

And one of the major guardrails that protected democracy on that day, on January 6th, was the response of former Vice President Mike Pence, who withstood what the select committee has illustrated was unprecedented pressure by former President Donald Trump to reject the certification of ballots.

>> Let's get back to work.

>> What do you think of what Mike Pence did that day?

>> He stood up for the rule of law in a way that deserves great, great praise.

He made the decisions, obviously, under tremendous pressure.

And we should be thankful that we had him there and he acted as he did.

>> And yet one of the planks of the Electoral Count Act that could stand to be clarified and modernized is the what role the vice president should have in the counting of the ballots of the electors from each state.

What is the problem with what the Electoral Count Act says now about the role of the vice president?

>> Well, I think the Electoral Count Act even now makes it clear that the vice president plays a basically ceremonial role of opening the envelopes and passing them on.

But since there was even a question raised about that, it should be addressed and can be addressed in reform.

>> The current Electoral Count Act is written in a way that it takes just two members of Congress -- one member of the Senate, and one member of the House of Representatives -- to raise an objection in the counting of the electoral ballots.

Should the threshold for objection be raised from one member of each chamber?

>> Yes, I think there is bipartisan agreement that the threshold for holding up a state slate should be raised.

>> We heard in the hearings this week more details about President Trump's scheme to put forward fake electors in seven states that had voted for Biden.

Is there a reform to the Electoral Count Act that would address this scenario?

>> Well, the real reform to that scenario is to make clear that a certification from a state, under its proper processes, is final.

>> But what if a Democratic governor in Pennsylvania refuses to certify a Republican win in that state?

How would an updated Electoral Count Act address that scenario?

>> Well, there are a couple of different ways to do it, and that actually is the most contentious issue of reform, which is whether you need another federal law to specifically address that scenario or whether current law and the constitutional protections actually provide enough power for federal courts to order the state official to do his or her job.

I personally am for an additional federal cause of action to make it really clear, but I think there is reluctance amongst a number of Republican senators, conservatives, that creating new federal causes of action is an encroachment that shouldn't take place.

But I do think that that is a decision that will be made probably within the confines of Congress after hearing from a lot of experts on both sides of that issue.

>> It has been reported that Senator Susan Collins of Maine and Democratic Senator Joe Manchin of West Virginia have been leading bipartisan discussions to reform the ECA.

As of this month, the group seems very close to a deal.

Do you view a modernization, an update, of the Electoral Count Act as mission critical before 2024?

>> Yes, just because 2020 showed how the Electoral Count Act can be used for nefarious purposes.

So it did point out that a statement from Congress clarifying the provisions we've talked about really is mission critical.

>> In 1973, on the original "Firing Line," William F. Buckley Jr. hosted a discussion entitled "The Implications of Watergate."

Buckley was actually asked about reforms to the office of the presidency in the aftermath of Watergate.

Take a look.

>> If you live in a society in which lawlessness becomes intellectually fashionable, as it was in this country during the last 10 years, you beget, I think, a counter-countercultural lawlessness, of which Watergate is an example.

So none of these paper reforms, however commendable they are from other points of view, will, in my judgment, give us the kind of security that we would like to have against future Watergates.

>> "None of these paper reforms, however commendable they are, from other points of view, in my judgment, will give us the kind of security we would like to have against future Watergates."

So can paper reforms in our situation now fix future unmerited challenges to our elections?

>> The paper changes now can help fix some of the challenges that we face.

What this always comes down to is that individuals matter.

And you saw that very much in 2020.

You've seen it in the witnesses before the committee who stood up to the pressure.

You saw it with Mike Pence.

At the end of the day, this does come down to individuals fulfilling their oaths and their roles under the Constitution.

>> You've talked a lot, Ben, about the uncertainties in the law, and we've gotten into a lot of the details of the law.

But big picture, pulling back, how vulnerable do you think our democracy actually is as we go into 2022 and, more importantly, 2024, our next presidential contest?

>> That you have to ask the question and that we've had this discussion tonight shows us that there are vulnerabilities that, at least in my professional life, we have never before faced.

And so in that sense, we are in a different, more dangerous place than we've been for a considerable amount of time.

And as you pointed out, there are a lot of people who do not believe in the accuracy of elections who are running for office, and that's a huge potential vulnerability.

>> That actually gets me to my final question.

I've heard you say that our greatest crisis is that some 30% of the country doesn't believe that our elections are accurate and ultimately that we can't sustain democracy if that many people don't trust the electoral process.

What are your final thoughts on how to restore faith among voters ahead of the next presidential election?

>> I think that the issue of people not believing in our elections and how divided we are, how polarized, is a real problem.

And I think that the real crisis comes from red America not talking to blue America, and blue America not talking to red America.

And so I think that the solution to the crisis probably isn't a national solution, because I think that's a fairly poisonous atmosphere right now.

And that, in fact, it's a community solution.

And the more work that can be done on the local level is really, really important.

And I think that Electoral Count Act reform is really important, but I also think that community engagement between the red forces and the blue forces is equally important.

>> So if you had to put your money on 2024, do we pull through?

>> Yes.

>> Ben Ginsberg, thank you for coming to "Firing Line."

>> Thanks, Margaret.

>> "Firing Line with Margaret Hoover" is made possible in part by... And by... Corporate funding is provided by... >> You're watching PBS.