While Ginsberg says he doesn’t recall uttering those exact words in real life, he has made plenty of enemies among Democrats for his tactics over the years. In addition to his role in George W. Bush’s 2000 victory, he advised a group that Democrats say falsely accused their 2004 nominee, John F. Kerry, a decorated Vietnam veteran, of lying about his military record and was widely seen as a decisive factor in Bush’s reelection victory.
Today, with tension rising over the results of a presidential election, Ginsberg is once again on the front lines but playing an unfamiliar role: Democratic ally.
From newspaper op-eds to network TV interviews, Ginsberg, recently retired from his work for the law firm that has represented President Trump’s campaigns, has denounced the baseless claims by Trump and his GOP allies that last week’s election was rigged and rife with fraud.
“For the president of the United States, the leader of the free world and head of the Republican Party, to make completely unsubstantiated charges about our elections being rigged is not right,” he said in an interview.
Whereas Ginsberg said the 2000 recount was a legitimate legal issue — a recount in a single state with the two candidates separated by just 537 votes — he said the Trump campaign has no legal basis to dispute the victory by President-elect Joe Biden.
Asked to explain his transformation, Ginsberg said he became increasingly troubled this year that Trump was not just making baseless claims about fraud, but also undermining a tenet of American democracy.
“My evolution started when the president doubled down in the lead-up to the 2020 election on his charges that our elections are rigged and fraudulent in a way that he hadn’t previously,” Ginsberg said. “It became a systemic attack made completely without evidence, aimed at undermining a basic pillar of our democracy. I know there’s no evidence for systemic fraud because I had spent the better part of every election for four decades working in Republican poll-watcher programs and elections day operations.”
Ginsberg, 69, is now one of the most visible Republican critics of Trump’s effort to undermine the election results. He has written op-eds for The Washington Post blasting Trump’s allegations that the election was fraudulent, including one in which he wrote, “My party is destroying itself on the Altar of Trump.” He has spread his message across the media, including a Sunday appearance on “60 Minutes.”
While Ginsberg is not working with Democrats, he joined an amicus brief in a Texas case against a Republican effort to throw out 127,000 ballots cast at drive-through locations in Harris County. A judge rejected the effort to throw out the ballots.
Some, however, question whether Ginsberg is the best messenger against the Trump campaign’s legal strategy.
Lawrence Noble, former counsel to the Federal Election Commission, said Ginsberg bears some responsibility for the atmosphere in which Republicans pushed through laws that Democrats viewed as voter suppression. Noble said Republicans have pushed an array of laws designed to limit Democratic turnout, such as requiring certain types of identification to register; Republicans have said such efforts are designed to deter fraud.
“I appreciate his acknowledging what others have known and argued during that time — that widespread voting fraud is myth,” said Noble, who said he is nonpartisan and dealt with Ginsberg on campaign finance matters at the FEC.
“But this is not an academic or theoretical argument,” Noble said. “He was part of the baseless Republican effort that effectively deprives real people of their right to vote. Trump’s rhetoric and outrageous legal actions are an immediate problem. But I’m not sure Ginsberg is ready to admit the Republican voter suppression laws sold as necessary to stop fraud are indefensible and were never supported by the facts. If he is serious, he should denounce and oppose the voter suppression laws the Republicans were pushing before Trump and will be pushing after he is out of office.”
The Trump campaign did not respond to a request for comment.
Ginsberg said he had no regrets about his work or about Republicans’ local and state efforts to require voter identification, which he said are worthy ways to ensure the vote is fair, not efforts at suppression.
“Those laws were passed by elected legislators and signed into law by elected governors,” Ginsberg said. He said calling them voter suppression is unfair and an example of “today’s polarized climate.”
Ginsberg, raised in a liberal household in a Philadelphia suburb, initially pursued a journalism career, working at the Boston Globe, the Philadelphia Inquirer and elsewhere. After writing about federal programs that he thought were a waste of money, he became a Republican, went to law school at Georgetown University, became an associate at a Washington law firm, where he focused on libel law, and eventually was asked to work on Republican-led recount efforts.
In 1984, he worked on a recount in an Indiana congressional district that became known as the “bloody Eighth” and set the tone for election battles to come. After the secretary of state certified that the Republican had won, Democrats deployed tactics that enabled them to vote along party lines in the U.S. House to declare that the Democrat had won.
“The bloody Eighth caused an earthquake in the Republican Party” and “woke up” the GOP, Ginsberg said. It also launched his career as the party’s leading election lawyer.
Ginsberg said his work on the 2000 Florida recount and other cases is different from his criticism of the Trump legal strategy. In his cases, he said, he looked for irregularities and used evidence to fight in court. In the case of the Trump legal strategy, he said, the president is making unfounded claims about the system being rigged.
“Being involved in Bush versus Gore means really realizing that every vote does matter and that elections can be won and lost by very narrow margins,” Ginsberg said.
Ginsberg became embroiled in controversy in 2004, when he served as outside counsel for Bush’s reelection campaign and simultaneously worked for a group that became known as the Swift Boat Veterans for Truth.
The group was behind ads that attacked Kerry’s service during the Vietnam War, for which he was awarded the Bronze and Silver stars and three Purple Hearts. One ad accused Kerry of lying about his action for which he was awarded a medal, a charge rebutted by Kerry. The Kerry campaign at the time accused the Bush campaign of improperly coordinating with the Swift Boat group.
In the ensuing uproar, Ginsberg said he had done nothing wrong, citing federal election law that did not bar lawyers from representing numerous clients, but he soon resigned from the Bush team. In a letter to the president, he wrote, “I cannot begin to express my sadness that my legal representations have become a distraction from the critical issues at hand in this election.” He added that he was “proud to have given legal advice” to the group.
Ginsberg declined to comment in the interview about his work with the Swift Boat group.
He soon returned to his leading role in Republican politics, working with GOP committees and serving as counsel to Mitt Romney’s failed 2008 and 2012 presidential bids. Ginsberg was then appointed by President Barack Obama to co-chair a bipartisan commission on election administration along with Democratic lawyer Robert F. Bauer. The commission issued a set of recommendations that included calls for expanded access to voting before Election Day, many of which were adopted by various states, Bauer said.
Ginsberg, who worked on the failed 2016 Republican presidential campaign of Scott Walker, did not publicly declare during that election whom he voted for, and he became a television political analyst. Starting in 2014, he worked on election law at Jones Day, which served as outside counsel to Trump’s 2016 and 2020 campaigns. Ginsberg said in the interview that, in his capacity as a firm partner, he did some work for the president’s campaign in 2020, but he declined to be specific.
Ginsberg retired from the firm on Aug. 31 and within days unleashed his attacks on the president.
Bauer, who has been a Biden campaign adviser, said having Ginsberg weigh in against Trump’s court actions is invaluable at a time when so few top Republicans are willing to distance themselves from the president’s effort.
“There are a lot of Republicans who are too cowed to do it; they are worried about a backlash from the hard right,” Bauer said. “Ben has so much political capital he can do that. And I don’t think he’s losing friends in the Republican Party. I think there’s a recognition that when he’s taking a position like this, he really believes it.”
Alice Crites contributed to this report.