The United States v. George Bush
By Elizabeth de la Vega, Tomdispatch.com. Posted November 28, 2006.
What would the case against George Bush for intelligence fraud in the leadup to the war in Iraq look like? A former federal prosecutor lays out her case to an imaginary grand jury, and all she needs is the evidence available in the public record to make her case.
United States v. George W. Bush et al. by Elizabeth de la Vega (Seven Stories Press and Tomdispatch.com, 2006).
"Elizabeth de la Vega, appearing on behalf of the United States." That is a phrase I've uttered hundreds of times in twenty years as a federal prosecutor. I retired two years ago. So, obviously, I do not now speak for any U.S. Attorney's Office, nor do I represent the federal government. This should be apparent from the fact that I am proposing a hypothetical indictment of the President and his senior advisers -- not a smart move for any federal employee who wishes to remain employed. Lest anyone miss the import of this paragraph, let me emphasize that it is a disclaimer: I am writing as a private citizen.
Obviously, as a private citizen, I cannot simply draft and file an indictment. Nor can I convene a grand jury. Instead, in the following pages I intend to present a hypothetical indictment to a hypothetical grand jury. The defendants are President George W. Bush, Vice President Richard Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State Condoleezza Rice, and former Secretary of State Colin Powell. The crime is tricking the nation into war -- in legal terms, conspiracy to defraud the United States. And all of you are invited to join the grand jury.
We will meet for seven days. On day one, I'll present the indictment in the morning and in the afternoon I will explain the applicable law. On days two through seven, we'll have witness testimony, presented in transcript form, with exhibits.
As is the practice in most grand jury presentations, the evidence will be presented in summary form, by federal agents -- except that these agents are hypothetical. (Any relationship to actual federal agents, living or deceased, is purely coincidental.)
On day seven, when the testimony is complete, I'll leave the room to allow the grand jury to vote.
If the indictment and grand jury are hypothetical, the evidence is not. I've prepared for this case, just as I would have done for any other case in my years as a prosecutor, by reviewing all of the available relevant information. In this case, such information consists of witness accounts, the defendants' speeches, public remarks, White House press briefings, interviews, congressional testimony, official documents, all public intelligence reports, and various summaries of intelligence, such as in the reports of the Senate Select Committee on Intelligence and the 9/11 Commission. I've discarded any evidence, however compelling, that is uncorroborated.
Then, using a sophisticated system of documents piled on every surface in my dining room, I've organized and analyzed the reliable information chronologically, by topic, and by defendant. I've compared what the President and his advisers have said publicly to what they knew and said behind the scenes. Finally, I've presented the case through testimony that will, I hope, make sense and keep everybody awake.
After analyzing this evidence in light of the applicable law, I've determined that we already have more than enough information to allow a reasonable person to conclude that the President conducted a wide-ranging effort to deceive the American people and Congress into supporting a war against Iraq. In other words, in legal terms, there is probable cause to believe that Bush, Cheney, Rumsfeld, Rice, and Powell violated Title 18, United States Code, Section 371, which prohibits conspiracies to defraud the United States. Probable cause is the standard of proof required for a grand jury to return an indictment. Consequently, we have more than sufficient evidence to warrant indictment of the President and his advisers.
Do I expect someone to promptly indict the President and his aides? No. I am aware of the political impediments and constitutional issues relating to the indictment of a sitting president. Do those impediments make this merely an empty exercise? Absolutely not.
I believe this presentation adds a singular perspective to the debate about the President's use of prewar intelligence: that of an experienced federal prosecutor. Certainly, scholars and experts such as Barbara Olshansky, David Lindorff, Michael Ratner, John Dean, and Elizabeth Holtzman have written brilliantly about the legal grounds for impeachment that arise from the President's misrepresentations about the grounds for an unprovoked invasion of Iraq. But for most Americans, the debate about White House officials' responsibility for false preinvasion statements remains fixed on, and polarized around, the wrong question: Did the President and his team lie about the grounds for war? For many, the suggestion that the President lied is heresy, more shocking than a Baptist minister announcing during vespers that he's a cross-dresser. For many others -- indeed, now the majority of Americans -- that the President lied to get his war is a given, although no less shocking.
So my goals are threefold. First, I want to explain that under the law that governs charges of conspiracy to defraud, the legal question is not whether the President lied. The question is not whether the President subjectively believed there were weapons of mass destruction in Iraq. The legal question that must be answered is far more comprehensive: Did the President and his team defraud the country? After swearing to uphold the law of the land, did our highest government officials employ the universal techniques of fraudsters -- deliberate concealment, misrepresentations, false pretenses, half-truths -- to deceive Congress and the American people?
My second goal is to supplement the scholarly analyses already written, by moving beyond exposition, beyond theory, to the inside of the courtroom, or more precisely, the grand jury room. By presenting the President's conspiracy to defraud just as a prosecutor would present any fraud conspiracy, I hope to enable readers to consider the case in an uncharged atmosphere, applying criminal law to the evidence that they believe has been proved to the standard of probable cause, just as grand jurors would in any other case.
Why is it important to do this? Because whether the President and his senior officials conspired to defraud the United States about the grounds for war is, at least on one level, a legal question, but, without a shift in political will, there will never be any reasoned consideration of it as such. The President will not be held accountable for misrepresenting the prewar intelligence unless and until Congress conducts hearings similar to the Watergate hearings. As yet, however, we seem painfully incapable of reaching that point. We are like inept tennis partners, collectively letting the ball slip by in the no-man's-land between the service line and the baseline, or in this case, between the legal and the political.
Perhaps more important, however, is that, although the evidence of wrongdoing is overwhelming, the facts are so complicated -- far more so than those that prompted the Watergate hearings--that it's impossible to have a productive debate about them in the political sphere. Indeed, modern-day spin has vanquished substance so thoroughly that even the most well-grounded charge of deliberate deception is often considered more despicable than the deception itself.
One forum where that's not true is the courtroom. The court system is far from perfect, but there we at least expect that people will not substitute personal attacks for argument. We expect a reasoned exploration of fact versus fiction, honest mistake versus deliberate fraud. We also expect, and the law requires, that people hear all the evidence before deciding, thereby avoiding the rapid volley of sound bites that so regularly masquerades for debate on television. Hence, this hypothetical grand jury presentation: it is a vehicle to deliver a message.
My third goal is to send the message home -- to whomever will listen. And this is it:
The President has committed fraud.
It is a crime in the legal, not merely the colloquial, sense.
It is far worse than Enron.
It is not a victimless crime.
We cannot shrug our shoulders and walk away.
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