Prof. Tokaji: No Due Diligence

People have asked me to respond to what they perceive as Ohio State Law professor Dan Tokaji’s “balanced” analysis of Robert Kennedy’s Rolling Stone article about the stolen 2004 election. Tokaji’s piece is entitled “Back to Ohio” and he has a section called “A Gran of Salt” that deals with the Mighty Texas Strike Force. Let me suggest that you take Tokaji’s writing with a grain of salt as well. When I talked to Professor Tokaji, he informed me he relied only on the Conyers Report for his analysis and no additional research. What Professor Tokaji did, and I say this as a graduate of Ohio State Law School, was fail in his “due diligence,” that requirement drilled into every first year law student that one should meet reasonable expectations and put forth efforts ordinarily exercised by a person before they put forth certain statements or claims.

Below is a direct quote from Tokaji’s article:

“A Grain of Salt”

“There are other aspects of Kennedy’s report that would be very disturbing if true, but appear to rest on somewhat weaker evidence. For example:

“* Kennedy describes a group of Republican operatives known as the “Mighty Texas Strike Force” which allegedly “us[ed] pay phones to make intimidating calls to likely voters.” Kennedy’s source for this allegation is a report produced Democrats on the House Judiciary Committee in January 2005, entitled “Preserving Democracy: What Went Wrong in Ohio,” also known as the Conyers Report, which quotes a statement made by an unidentified hotel worker. While this allegation is what we lawyers would call hearsay — actually, it’s triple-hearsay, since the Conyers Report was relying on a statement made at a hearing by someone other than the hotel worker — if true it’s obviously very troubling.”

Now had Tokaji done a five-minute Google search, he would have found the following:

* The Mighty Texas Strike Force

* With new legislation, Ohio Republicans plan holiday burial for American Democracy

* Down to the Wire

* Lone Stars to the Rescue

* Texas Federation of College Republicans “The Mighty Texas Strike Force”.

Here’s what Tokaji could have written: “Kennedy describes a group of Republican operatives known as the “Mighty Texas Strike Force” which allegedly “us[ed] pay phones to make intimidating calls to likely voters. Kennedy’s source for this allegation is a report produced Democrats on the House Judiciary Committee in January 2005, entitled “Preserving Democracy: What Went Wrong in Ohio,” also known as the Conyers Report. The Report is also backed up by a 911 report on file with the Columbus, Ohio police and an affidavit prepared by Jim Branscome, the night clerk at the Columbus Holiday Inn who witnessed the activities of the Mighty Texas Strike Force. Linda Byrket, who documented the long lines at polling sites in Franklin County on Election Day in “Video the Vote” taped Branscome’s statement as well. Branscome described himself as a “conservative” and said that the Mighty Texas Strike Force was using lists of names to make phone calls from pay phones.

“‘Look, I know you got out of prison about’…X amount of months ago…I can’t remember how many months he gave, but it was earlier this year, the year 2004, and he said, ‘It’s illegal for you to vote in this state, and if you show up tomorrow at the polls, we’re going to have the FBI there waiting for you, and we’re going to haul your ass right back into the slammer’ he told him or into the ‘can’ or something like that.”
–From a videotaped interview with Robert Fitrakis and Linda Byrket.

The night auditor at the hotel showed the Free Press records confirming that the Strike Force rooms had been paid for by the Ohio Republican Party. The Mighty Texas Strike Force was contacted by the Free Press, and while no wrong-doing was admitted, they did concede they were in Columbus, Ohio two weeks prior to the election and that their actions were directed by Karl Rove at the White House. Both WVKO 1580AM radio and the Columbus Dispatch radio reported calls during this period directing voters to the wrong polling site. Numerous callers to WVKO, the city’s oldest black-owned radio station, reported calls from unidentified people telling them they would be arrested if they attempted to vote.

Tokaji uses the term “triple hearsay” to discredit Kennedy. Instead, he could have easily included the readily available facts. He knew from the Conyers Report that the statement came from me. He could have called me and asked what our evidence was on the Mighty Texas Strike Force.

Also, it would be interesting for people to call Mr. Tokaji to ask who funds the Election Institute at the Ohio State College of Law where he works. We know that his boss, Professor Ned Foley who served as State Solicitor under a Republican governor, is the Jones-Day endowed chair. Hence, a direct money flow from one of United States’ largest corporate law firms. Call Tokaji and ask him for the facts.