tv Washington Journal Attorney George Terwilliger CSPAN July 8, 2021 5:30pm-6:15pm EDT
>> this week marked the six-month anniversary of the january 6 attack in the u.s. capitol. tonight, we are showing congressional hearings that took place in the aftermath of january 6. tonight, a senate meeting with major general william walker who served as d.c. national guard commander at the time. and then former trump officials and dcp chief appear before the house oversight committee. watch both hearings tonight and tomorrow, starting at 8:00 p.m. eastern on c-span. george terwilliger served as the deputy journey -- deputy attorney general for the bush-cheney. he's a partner of mcguire woods. we will talk about election integrity. can you go back to the year 2000
and the role you played in the recount and what it taught you about issues of election integrity. guest: i would be glad to. the issue in the recount as it evolved over time was really, what is a valid vote? much different question than some of the issues that exist today. a vote is really a form of human occasion. where a person -- a form of communication. where a person communicates in confidence. if that communication is unclear for some reason, then what really florida boiled down to is the necessity of having objective criteria and equal criteria by which that communication would be interpreted and judged. in that case, there were of course the use of punchcard ballots in some of the contested counties and every time the
punchcard is put through the recount process in a machine, it changes the nature of the card such that we wound up with some little holes being partially punched out, some being dimpled and so forth. but then the larger legal issues that came about there had to do with in a presidential election, the constitutional role of the state legislature to prescribe the election procedures. and when the courts, the florida courts, started to change deadlines and change the election procedures prescribed by the legislature, it really became too much of a constitutional matter for the supreme court. host: from what you learned on those two fronts, you have seen -- has anything changed much since those days of 2000 when it comes to administration of election? guest: yes, a great deal. my experience goes back a bit
before. i assisted the late senator john warner when he was chairman of the senate of the rules committee of judging the election of mary, her original auction to the senate which was contested by her opponent on allegations of vote fraud. as much as is true today, the fact that there is no vote fraud is a myth. but proving that vote fraud can affect the outcome of an election is almost impossible. the reason for that is that when the boat becomes -- the vote becomes dissociated by the vote or person -- or in person, it becomes impossible to prove what the effect of any number of fraudulent votes were and to put that more plainly if i may, let's say there is an election in a precinct where there are 100 votes. if you find out later that 10%,
10 of those votes were invalid for one reason or another, either the voter was dead or that mailer was not filled out correctly or so forth, does make a difference in the outcome of election. it only makes a difference in the outcome of the election if those 10 votes could have affected the outcome. if they did, yes it can. there is nothing that can be done about it at that point because we do not know who those 10 invalid votes were cast. fast-forward to the 2020 election and allegations of voter fraud made there, that can never be proven. and it is irresponsible frankly in my opinion to continue to push the idea that that election has a level of fraud that affected the outcome. we will never know. host: our guest at joining us to talk about issues of voting and
election integrity, (202) 748-8000 for democrats. (202) 748-8001 for republicans and independents, (202) 748-8002. you can text us at (202) 748-8003. to the last statement, i am sure people have called this program, i'm sure you heard this yourself that people will point to cases in various states that they can say, yes, there were clear issues of voter fraud, about the recounting, windows recovered or things like that. when you hear those things, how do you respond to that? guest: i think it is very important to look at these issues objectively and to separate the phenomena of voting irregularities which have been every election from voter fraud. i would encourage people to look at two sites from left and right from this issue. one is the heritage foundation has an excellent piece on its
website about voter integrity and believe it or not, it is not much different from what the brennan center has on its site about voter integrity. the brennan center does a pretty good summary on its website of a number of instances where victor fraud occurred that probably affected the outcome -- where the vote fraud occurred that probably affected the outcome of the election, especially lyndon johnson in 1948 and perhaps the election of others over time that it recounts. both of those sites from the left and right had some objectives which they espoused which is in comment of how we can have election integrity and i wish that our public discourse about this was a less political -- was a less political and factually precise -- was less
political and more factually precise. the more we have questioning, the more seed of doubt we are sowing in the minds of the american public, which is a pernicious thing. host: did you have any role in the 2020 election when it came to recounting? guest: i did not. i did represent the candidates in the republican senate campaign committee in that run up to the georgia recount trying to get some procedures in terms of the georgette mail-in ballot review change in order to make them more equal in terms of the judgment of signatures. the whole mail-in ballots thing is a mess to be honest with you. the idea that we are going to ask nonprofessional handwriting experts to compare signatures as a means of verifying that a
ballot has come in the mail from an eligible voter is really absurd when you think about it. and that is one of the reasons i think the rhetoric surrounding some of the changes that the georgia legislature has made to the georgia election procedures, not eligibility, but procedures, are actually quite sound and some of the rhetoric we have heard in opposition to that, such as new jim crow and that sort of thing, is really rather irresponsible. host: the president referring to it as jim crow 2.0. guest: i have known president biden since he was judiciary and i saw that commentary as disappointing. host: we have a call lined up for you. virginia beach starting off, republican line. go ahead. caller: thank you very much for taking my call. i have two comments to make and
i would like our reaction to them. the first one is, i take a lot of pride in my id when i go to vote. it proves who i am, that i am a registered voter in that poll and i am an american. i take a lot of pride in that and i have no problems with an id. the second comment is that i am tired of hearing the excuse implied or set specifically, we ran out of time. we do not have time for the recount. we do not have time to do a total revote of the country to find out any errors in the recording of people's votes. we need someone we just ran out of time.
that seems to be the excuse every time we have a presidential election. i would like your comments on that. guest: on your first point, i think the idea that we should require identification to get on an airplane to go to a liquor store and buy alcoholic beverages and all of the other things that require identification but not require identification in order to vote, in order to improve in fact eligibility is unfortunate that that has become part of the battery. clyburn has come out in favor of voting identification after having opposed it. hopefully we are getting by that issue. that being said, i think it is
important that a means of identification available to every voter. there are two fundamental pin -- fundamental pillars of establishing public confidence in the election process. one is that those eligible to vote should do so and that their votes would be accurately counted and tabulated. on the second issue you mentioned about time, going back to pedro's initial question about the 2000 election, you may recall that in the recount in florida there was an allegation that the butterfly ballot used in palm beach county, florida in the 2000 election was so confusing that they should do it over. i remember standing with secretary baker when that issue initially came to vote -- initially came up the first week we were down there and saying there are no do overs in a presidential election.
that is because the timing of the election is dictated both by the constitution and bylaws that congress has passed under -- and by laws that commerce has passed under provisions. the pressure of time israel. -- of time is real. recounts for the most part arei. i don't know if you heard of the example i give before, but there is no point in doing every cap after the fundament votes and the good folks have been separated. there is no way to know who voted for who and separate those ineligible votes out. you can catch the same ballots over and over and within statistical norms you get the same result aside from some other accounting regularity -- accounting irregularity. host: from texas, tom s, you are
up next -- thomas. caller: you say jim crow does not exist but they took 50 drug boxes and limited them down to one out here. this is 10 miles from where i live. do you know how many people died from -- die for voting rights? dash diet for voting rights -- died for voting rights? imagine jim crow, states do what they do. they went back and said i want this to be done and that to be done. there is nothing you can do about it. the only thing we can do is get your id, make sure you get to vote. the thing is that i give it another 10 years, that is
probably as long as republicans have. thank you. guest: your prognostication on the future of the republican party be interesting to see. your point that getting an id and putting is important. one of the things that has happened is that partisans have tried on both sides to manipulate the voting process to their advantage. that is wrong. campaigning and seeking to get votes for a candidate is a very different exercise than the voting process itself. in my view, we should look at the voting process, the casting of ballots as sacrosanct and we should respect it. it should not be manipulated for political purposes. the caller is right that we have a sorry history, particularly in
the 19th and early 20th century of keeping people particularly -- keeping people, particularly minorities, from the polls. the voting rights act and other things that took place, there is no doubt we have made good progress on that and we will continue to struggle as we go forward. now there has to be a shared objective in making the franchise of the vote available to all, but also assuring people that process is conducted with honesty and integrity. if the people this confidence in that, we have lost a cornerstone of our democracy. host: alabama, this is from karen in alabaster. republican line. caller: i have two points here. the first is that you say we cannot prove you won an election by auditing an election but i
don't see why we can't. we have paper ballots. joe smith says i voted for trump and he puts it in the machine and we look at the machine and the machine says we voted for biden. i don't see how that cannot be proven. you can prove if that person is illegal american citizen and has the right to vote. that is what they are doing an arizona. the second thing is that he say the voting as sacrosanct and so they we should protect. i agree. in pennsylvania when the government to the voting laws at the last minute, bypass the state legislature which the constitution says that the state legislature is the one that passes the voting law. how did that happen? you may not know this, but vice president pence could have sent the votes back to pennsylvania. he got one from the state
legislature and one from the governor. the state legislature's -- just later is the one who has the right to oversee election. host: we will let our guest respond. guest: it is not quite as simple as that in terms of the legislature. i take your point that the governor of pennsylvania did change the administration of the voting laws. where the line is between the administration authority that belongs to a governor or secretary of state and the rules for voting as prescribed by the legislature is very important. let me go to your point about voter fraud. the flaw in the analysis of how you could boot -- how you can prove vote fraud is that we have a secret ballot -- we have a
secret ballot. we separate the identity of the voter from the vote. whether it is mailing or in person, the act of casting the ballot for a particular candidate is kept separate from the identity of the voter. no matter how many times we find an ineligible ballot was cast, once it is separated from the identity of the voter, which is what makes it eligible or not eligible to be a valid vote, it is too late. that is why what the legislatures do and are doing to ensure the integrity of the process up to that point is so important in ensuring election integrity. host: when you were talking about georgia's voting law, the department of justice announced they are filing suit on aspects of that. i want to play little bit from the attorney general.
[video clip] >> the department of justice today is suing the state of georgia. our complaint alleges that recent changes to their election laws were enacted with the purpose of denying or abridging the right of black georgians to vote on account of their race or color in violation of section two of the voting rights act. several studies show that georgia experienced record voter turnout and participation rates in the 2020 election cycle. approximately two thirds of eligible voters cast a ballot in the no november -- in the november election. this is cause for celebration. then in march of 2021, georgia's legislature passed a law. many of that law's provisions make it harder for people to vote. the complaint alleges the state enacted those restrictions with
the purpose of denying or abridging the right to vote on account of race or color. host: mr. george terwilliger, what do you think about the case dd -- the drg has to make? -- ddo g has to make? -- v doj -- the doj has to make? guest: that will be played out in court. the central premise of the department's case and what the attorney general stated is that the georgia legislature acted with a discriminatory intent. i think that is going to be very difficult to prove under the relevant jurisprudence. i think others have questioned, legitimately, and i think this will be an issue if what the georgia legislature did actually made it harder to vote. georgia has a very liberal, open
voting process in terms of the number of days that voting by mail and other means is possible. and so forth. as the supreme court said in the arizona case, placing certain requirements in the voting process does not necessarily affect eligibility and the ability to cast a vote. that is what will be played out on a factual basis first in the district court. it will then have to be reviewed jurisprudencely. some people have questioned the timing of the suit of the justice department and have suggested political motivation. i have no idea if that is true or not. i hope it is not. i will go back to the point i made before, if i may, and i think it is that partisans on
both sides should not try to use the voting process as a means to win elections. elections were meant to be won in campaigns, the voting process should be sacrosanct. host: george terwilliger is our guest. he was a former attorney general -- deputy attorney general for george w. bush. from michigan, democrats' line. caller: in michigan, we have a voter id law. when you go to vote, you have to show two valid ids, your driver's license or your state id with your voter registration card and it had to match up with your address, your street number and your address. i have been voting absentee. when i voted absentee this last
time, former president trump said we stole the election. they came to michigan and tried to break into the center. if they had gotten into the tef center, they would have destroyed all of our ballot -- our absentee ballots that came out of wayne county. do think that president trump won the election fairly -- lost the election fairly? do you think that michigan helped steal the election? host: sorry about that, but mr. george terwilliger you can answer. guest: i accept the outcome of
the presidential election completely. i think the michigan republican party produced a 50 page report that refutes many of the allegations that were made of voter fraud in that election that affected president trump's opportunity for victory in michigan. i think that was a very good thing for that party to do. once again, you have to be sure not to conflate voting irregularities with widespread voter fraud which can affect the outcome of an election. that being said, what the gentleman described is a very good, solid voting procedure. i am glad he was able to get the opportunity to cast a vote. james madison warned in the federalist papers that partisans
will always try to interfere in the election process to their advantage. no matter what form that interference takes, it is simply wrong. that is what i mean about keeping campaigns and campaign issues and the object of getting somebody elected needs to be kept separate from how the voting process is administered. host: it was president trump's former attorney general, bill barr, making statements in the atlantic when asked about the prospect of widespread voter fraud. what do you think about a statement that describes the relationship you have with mr. barr? guest: bill barr is my friend and has been my friend for over 30 years. we share views on a lot of things. he does not v my views and i do notet vet his views.
the library of congress reported prior to the 2020 election the use of absentee and mail-in ballots has increased exponentially. covid increased that. there's no question that at least at the time of the 2020 election that the ability to ensure the eligibility of a voter casting a ballot by mail is much more different -- much more difficult than ensuring the eligibility of a voter who casts a vote in person. voter id make sense. even democrats are now agreeing with that even though they opposed voter id laws in court through their partisans over and over. effect of the matter is that mail-in ballots and absentee ballot processes do present a greater challenge to ensuring
the integrity of elections. thus, it makes sense to me that legislatures and election administers -- administrators take steps to letting that process up -- to tighten that process up as much as possible. host: his claims about pride claims be? without merit, do you believe him. -- is about fraud claims to be without merit, do you believe him? guest: yes, i believe him. in an election in 1996, in an on the ground investigation, we found numeral instances of invalid votes being cast. some of them systematically, as evidence of voter fraud. as senator warner said publicly at the time and as a senate
committee adopted a resolution at the time to seat misses landrieu in the senate, there was no way to prove that it affected the outcome of an election. the referenceable claims of voter fraud as made to the 2020 election. i think it was to those that the attorney general was making at the time. host: from florida, independent line. caller: so much to talk about in this country, but today we are talking about voting. i don't understand how we can't come together and there are rules and policies, how we can sue a state saying they're trying to keep certain people from voting is the most ludicrous thing i have heard in my life. i have been around quite a many
years. it is what it is, anything you do in life you need to show id. i had to show my id to get my covid shot. don't you have to show an id to do anything that is of constitute? this is absurd. the time and money we are wasting when there are hurricanes and people dying in buildings, it is absurd what our government is doing. let's get together and take care of one another. caller: -- guest: that is a great sentiment which i hope, regardless of already affiliation and philosophical approach we can all agree. one thing that those comments bring to mind, two things. the first is that this is a great show because this is one of the few things in the media today where there is any
opportunity for americans' voices to be heard. i think that is a wonderful thing and i am honored to be here. the second thing this brings to mind is that all of this focus on these issues are something that is very healthy. after the 2000 election and the recount was over, it was largely a forgotten public issue. while i think what happened post-20 election has had many tragic aspects -- post-2020 election has had many tragic aspects, i think many people are misled in their beliefs about that and that has been detrimental. that being said, the focus on these issues and on the asus --
and on the issues of making sure only eligible voters vote, but that all eligible voters have the opportunity to vote and when they do their votes are counted accurately and honestly, i think that will be a healthy thing for the country. and perhaps as the caller suggested as we come together on these issues, we will be able to put these controversies behind us and focus on some things that matter more to us as americans and human beings. host: because of the people you get to interact with, they come in on twitter. this is matt smith he makes this statement that "the guest argues that voter fraud is easy and therefore warrants limitation. can he present any examples of massive male in fraud in voting." guest: i'm not suggesting it is easy, rather that it is possible.
the best example, in north carolina, a republican candidate for congress's election was invalidated because of ballot fraud and the election had to be held over. yes, it is very possible. it can be done. i don't think the result of that needs to be making it more difficult for people who want to vote to vote. i think we just need to have a clean set of procedures of which identification of the voter is an important element that we can go forward from there. host: because of your time on capitol hill, you know about the efforts by the senate and the house to pass the for the people act which would make changes when it comes to voting laws, including automatic voter registration and creating public financing and the like. what do you think about this
effort? guest: i agree with senator joe manchin that that legislation is divisive and is constitutionally questionable if not invalid. the prescription of the means of voting belongs to the states and to the state legislatures. the administration of voting and the voting process belongs to state and local election officials as a constitutional matter. i don't think federal lysing that process makes sense -- federalizing that process makes sense. i think that legislation is a good example of partisans trying to manipulate the electoral process, the process by which you are cast and counted to partisan advantage.
i am glad that legislation is not going to make it through. host: senator joe manchin offering his own compromise, including making election day holiday, 15 days of mandated early voting and the like. it is a better approach? guest: i have not looked at this compromise in particular. i would not be in a position to make a subjective judgment on that. i would say as a general proposition, voting in new york is different than voting in montana. voting in california is different than voting and a texas. -- voting in texas. we are better if we push these issues down to smaller forms of government who can conform the process to the needs and abilities of their states. we federalize so many things
that the federal government has become so huge, so many dictates from lightbulbs to tags on mattresses. i think voting ought to be left to the states and to the elected representatives that are closest to the people in states and localities. host: this is actually from texas, republican line. guest: -- caller: one comment on the 2020 election as far as why people think there were so many nefarious things going on is that for the first time in our country's history, they stopped counting at a certain point of the night and the next morning when everyone woke up and counting was supposed to resume, everything was different. other than that, with the hr one which safely will not go
anywhere, i agree with the gentleman, federal lysing elections is ridiculous and should never happen -- federalizing elections is ridiculous and should never happen. host: we will let our guests respond. guest: in terms of the counting process itself, obviously, counting votes in an honest and transparent manner is important to ensuring the people of the integrity of the electoral process as a whole. click to call referenced i don't know, i don't know what the facts might be that she had in mind. in a state like texas where there are a lot of rural votes that have to be counted, the fact that the counting in a
close election in particular may go on to the next morning for the next day or day or so is not surprising. but, if you recall the election of what people nicknamed " landslide linden" -- "landslide lyndon," there were a lot of ballots that showed up late that change the outcome. the lesson of that is not that we can't have election integrity. the lesson is that it makes sense for legislatures, including those in texas to take steps that are validly being pressed into service -- pressed into service and used to ensure that the people who are eligible to vote get the vote and their
votes are honestly counted. if there are disputes about that , not so much in the context of elections but with election procedures, then we have courts to sort that out. such will happen with the suit the justice department has filed against georgia. that is how we resolve things in this country. if there are disputes, we resolve them peaceably through litigation. host: howard is in north carolina, democrats line -- democrats'. . line caller: i heard the gentleman speak of irregularity. he could not really pinpoint one. he did mention the one in north carolina, my state. it was republicans harvesting ballots from people of color and changing the vote. we do know that is a fact and we
know there are a lot of republicans who don't even have to fill out absentee ballots and they get one anyway. this is how they were winning in the beginning. when the president of the united states called the secretary of state in georgia and asked can you find me 11,000 votes? what would you consider that to be? guest: i think the color has a valid point -- the caller has a valid point. as i pointed out with that congressional election, in fact the opportunity for vote fraud is equally partisan opportunity. the fact that it was demonstrated on the part of
republicans only points out a weakness in the system that can be exploited by either side in a hotly contested election. i will not comment on the president's behavior after the election, i think it speaks for itself. host: this is sherry from mississippi, republican line. caller: good morning. i believe we are headed the right way as far as integrity laws. what i'm not hearing and what i personally experienced here in mississippi was electronic voting. i don't get a receipt of what about it for. all there is, an electronic screen saying this we voted for -- is this who you voted for.
-- guest: a great point. i am not a political scientist, nor am i an election procedure expert. those who are are apparently looking very closely at the question of maintaining the integrity of electronic voting systems. we certainly see with the amount of hacking that takes place and so forth that the opportunity to manipulate a system that is totally electronic is there. i know that many states and localities have taken steps to try to ensure the integrity of electronic voting and it is people like the caller who should hold the state and local
eviction -- state and local election officials' feet to the fire to ensure the integrity of those systems. if our people lose faith in the integrity of the voting system, we have lost a cornerstone of democracy. host: george terwilliger served as deputy attorney general ring the george w. bush administration this week marked the sixth anniversary. tonight, i hearing with the d.c. national guard commander during the time of the attack.
watch oath hearings tonight and tomorrow starting at 8:00 p.m. eastern on c-span. >> saturday on the communicators. >> republicans have been attacking big tech from all sorts of angles. they have coalesced on -- we need to use more antitrust enforcement in order to go after tech companies. they have very different reasons for doing so, even though they coalesced on the same solution. for democrats, it seems to be rooted in a typical animosity toward big businesses in general and needing to shrink them down to size. for republicans, it ties to this culture war against technology companies, where they perceive them about -- they perceive them
of being biased. the issue against big tech is tied to their feeling that big tech is out to get them. >> saturday at 6:30 p.m. eastern on c-span. >> legal experts and reporters recap the supreme court's rulings for the most recent term and pros and cons of phoned in oral arguments, which was implemented because of the pandemic. this is one hour 15 minutes. >> [inaudible] >> vice president of the heritage institute for constitutional government. we hope you enjoy the program. gregory: welcome everybody. [applause]