Could Bush be prosecuted?

Great Debates
41

As much as I cannot stand Bush, Bricker is dead on the money here… with one small exception.

The much ballyhooed International Criminal Court claims jurisdiction over the crime of aggression. The only problem is that the crime of aggression is undefined: the treaty that created the ICC was quite clear that aggression would be defined at some later time. So, for the meantime, it is powerless to prosecute anyone for that charge.

Some may argue that the US is beyond the jurisdiction of the ICC because we are not members of it. If one takes the side of the ICC, the criminal acts contained therein shall apply to everyone equally, regardless of whether their country signed up or not. That’s a pretty extraordinary claim; I can’t think of any other treaty that claims to apply to all countries, signatories or not. (Of course, customary international law, which is not treaty law, is created through the common practice of countries, and is binding on all countries regardless of their consent).

So, bottom line: there’s no domestic criminal charge to throw at Bush. In theory, there is an argument that the ICC could take action against Bush, but there are so many technical roadblocks in the way (not to mention political roadblocks) that it is fantasy to think that that might actually happen.

The only punishment for Bush that is in any way realistic is impeachment, but that’s pretty damn far-fetched.

42

I should probably go read up on the Gulf of Tonkin Incident, as that likely will have associated with it discussion of the legal status of Johnson’s distortion.

43

I’m not sure what money Bricker is on, as he simply repeats over and over “Show me the law!” in the typical “Cite!”-er’s harassing manner. However, as you are clearly more knowledgeable, could it really be that there is no law stopping a President from lying to the Congress to justify a war? That is, quite obviously, something I’m trying to get to the bottom of in this thread. I mean, you can’t even curse in the Senate while it is in session, yet you can give false testimony?

44

While I generally agree with the conclusion espoused by those like Bricker, I find some of the absolute talk a little over the top. I agree that Bush won’t be convicted under any international law. Not because some fair trial couldn’t produce a guilty verdict, but because no international body would be in a position to enforce any such verdict. In that respect, it is a fantasy concoction.

I also think the chance of impeachment or indictment under US law is extremely unlikely, for many of the reasons given. However, I would never have thought that Clinton would end up getting impeached and face a possible indictment over an investigation that started with Whitewater and ended with Monica. Predicting the future in American politics remains challenging.

Identifying a specific statute or the evidence to support it would likely only follow a stringent investigation. At that point, who knows what we might learn. Those who write as if the Congressional resolution simply read “Bush has the authority to wage war with Iraq however he sees fit” ought to go back and read the resolution. He was authorized only to perform two functions under that resolution, and only if he could assert two determinations to Congress in order to invoke the authority granted to him. If it could be shown that he asserted those determinations in bad faith, I suspect that impeachment could be simple. Criminal indictment would be a bit more of stretch, but that would really come down to what might be learned as to his specific behavior at the time.

45

I believe that one can be held in Contempt of Congress- which carries fines and possible jail time- for lying under oath. Not sure.

Of course, Bush was never sworn in under oath to testify to Congress; what facts were presented were presented at briefings given by the White House, IIRC, as opposed to during testimony to Congress.

And even if one wanted to bring legal action against Bush- say, a gigantic class-action lawsuit claiming ‘wrongful death’ against Bush for each soldier killed in the Iraqi War- one would have to prove that Bush knowingly presented or allowed to be presented false information to Congress in order to get the resolution passed.

Follow-up question: if we’re going to prosecute Bush for getting us into a war on false pretenses, shouldn’t we dig up Lyndon Johnson and prosecute him for all the people who died of hunger that he swore the Great Society would prevent?

46

Random attorney checking in here with a little bone to throw to Loopydude…

Originally posted by Loopydude:

This research is by no means exhaustive (about ten minutes on Westlaw)but short answer: No.

TITLE 18 USC § 1621. “Perjury generally” (this includes Congress)

Whoever—
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

AND

Title 18, USC § 371: “Conspiracy to commit offense or to defraud the United States,” in relevant part, reads:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

“If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the miniimum punishment provided for such misdemeanor.”

Of course, there are political and evidentiary mountains to climb, but at least according to US federal criminal law, if the president lies to Congress, provides Congress with false information to justify a political end, security end, obtain funding, etc. he can be sent to prison.

47

Johnson is dead. What misdeeds he may have done must remain unpunished. I’m not sure how the Great Society issue is at all relevant (I don’t think it is), though I have speculated quite explicitly above that The Gulf of Tonkin Incident seems highly relevant as a precedent for war-under-false pretenses.

48

I’m not sure that would be the only path. Again, in order to invoke his authority under the resolution, the President was required to deliver to Congress his determination of the conditions specified therein.

IANAL, but I suspect that determination carries the weight of sworn testimony. If it could be shown that the President provided that determination in bad faith, I would tend to think that criminal prosecution wouldn’t be out of the question. I could be wrong though…

49

Should have previewed…with Guy_Incognito’s post, I feel more strongly that criminal prosecution would not be out of the question, if evidence surfaced that Bush did not truly believe the determination he provided to Congress to invoke his authorization for the use of force in Iraq.

50

Yes, thank you to Guy_Incognito, that’s the very sort of legal expertise I was hoping would come up here eventually.

A Westlaw subscription is, alas, well beyond my means, and I probably wouldn’t know where to look if I had one.

51

My goodness, he’s demanding that someone actually identify the law that the President broke! How dare he!

The idea that the President and others either committed perjury or fraud on Congress is pretty far-fetched. Are you saying that the President and others knew that Iraq had WMD, and lied about it in order to deceive Congress to authorize war? If so, should not the CIA Director, who provided the so-called intelligence that fueled the President’s rhetoric, be even more guilty of fraud?

For one, I do not believe that the President made up his stories about Iraq out of whole cloth. To my eyes, it appears that he just got things horrendously, embarassingly, tragically wrong. But being mistaken (even when one does not admit it) does not equal a lie; it also does not equal fraud or perjury. I just don’t think that such a charge holds water, especially when the standard of proof is that of beyond a reasonable doubt.

There is nothing whatsoever to prevent Congress from holding the President accountable for getting things so horribly wrong. The vehicle for that is impeachment, not criminal charges. In any case, impeachment would be the necessary precursor to criminal charges.

Eh, that’s pretty tough. Congress did not require the President to certify facts before launching a war. Congress required the President to certify that:

So, the only way that the President could be dinged on those counts is if the President(not any other people, but the President himself) truly believed that (1) diplomatic actions WOULD ADEQUATELY protect the US from the threat of Iraq or that diplomatic actions WOULD LIKELY lead to the enforcement of UN resolutions; or (2) that he believed that the war in Iraq WOULD detract from the war on terrorism.

Seeing as how he was certifying that he believed his own judgments, it’s hard to argue that he certified something that he did not believe. Unless he wrote in his diary something like, “3-19-03: lied to Congress today… Saddam is about to give up, so I better go to war now so that I can less effectively prosecute the war on Al Qaeda”, there simply is no case here.

Again, I go back to the ICC: there the President could, in theory, be held accountable for his ACTIONS, rather than his state of mind at the time he launched the war.

52

Sometimes I feel like I should wear a slogan that reads, “three years of law school and all I got was this lousy Westlaw password.” Seriously, though, there are places to look on the internet for both federal and state law that, while not as convenient as Westlaw or Lexis, are just as comprehensive. Try the Cornell Law School Database - it’s huge and free.

Anyway, sorry for the hijack. Back to the discussion…

It bears repeating that perjury would be a difficult thing to establish here (there’s a reason why the President refused to testify under oath to the 9-11 Commission), but as former Counsel to the President John Dean wrote in this article, however, there is more than one way to skin the proverbial cat:

“It’s important to recall that when Richard Nixon resigned, he was about to be impeached by the House of Representatives for misusing the CIA and FBI. After Watergate, all presidents are on notice that manipulating or misusing any agency of the executive branch improperly is a serious abuse of presidential power.”

Thus the Dean article basically rests atop an important assumption: the President’s actions are held to a particularly high standard, and if those actions are deemed by the House of Representatives to rise to the level of abuse, (political impossibility aside) the House can bring to bear upon a presidential administration an investigational machine of unimaginable power that will essentially find impeachable whatever it can classify as either a high crime or misdemeanor.

But that’s not an open field…

Originally posted by Bricker:

Of course NOT. I understand that you were being facetious, Bricker, but the truth is that this is a common hyperbole.

Find a good introductory source of information on impeachment here. The House investigates by way of the Judiciary Committee; the Senate tries; the Chief Justice presides. The classification “high crime or misdemeanor” is a flexible one, but not so flexible that it isn’t mostly confined to actions one would normally think of (or which have been codified as) criminal. That’s not to say that being a Red Sox fan should preclude impeachment…

53

Corrected link to the John Dean article.

Guy_Incognito

54

And, since Bush wasn’t under oath, and there is no evidence of intent to defraud, there has been no demonstration of any criminal act.

Here’s another complication - Kerry voted to authorize the invasion, based on the same evidence as Bush. Kerry was on the Senate Intelligence Committee (when he bothered to show up), and supported Clinton when Clinton waged missile attacks based on the idea that Iraq had WMD. Shouldn’t we have to indict Kerry and Clinton as well?

Put it this way - what do you think the reaction of the country would be if President Kerry does exactly what his enemies say he will - subject the US to the essential control of the UN?

It’s like the nasty joke about Jesse Jackson.

Jesse shows up at the Pearly Gates. St. Peter says, “Who are you?”

Jesse says, “I’m Jesse Jackson.”

St. Peter says, “So, what did you do with your time on earth?”

Jesse says, “I was the first black man elected President of the United States.”

St. Peter says, “Oh? And when did that happen?”

Jesse says, “Oh, about ten minutes ago.”

I doubt Kerry’s term would last much longer than that.

Regards,
Shodan

55

OK. Now that we have an offense or two to analyze, let’s see what the elements of the offense are.

Guy_Incognito’s first suggestion is 18 USC § 1621. In both (1) and (2) therein, an oath is an element of the offense:

So far as I am aware, Bush never gave testimony under oath to Congress. 18 USC § 1621 is thus inapposite.

Now turning our attention to 18 USC § 371, we find:

Within the ambit of 18 USC § 371, then, are conspiracies - agreements - to commit an offense against the United States. In order to obtain a conviction under this section, we must show that there was an agreement to commit an offense. That offense would be… what, exactly? I have already acknowledged that if Mr. Bush was part of an agreement to commit a crime, he’s guilty, even though he may not have actually be the one to commit the crime. But “the crime” must be identified. This first phrase merely says that agreeing to commit an offense against the United States is a crime. In order to convict, you must identify the offense.

The second phrase is “to defraud the United States.” Fraud, and “defraud” have a meaning at federal law, and examples of fraud against the United States are covered extensively at 18 USC § 1001 et. seq.. It is unclear to me which of the sections of 18 USC 1001 and onwards could be applied to the present case.

  • Rick
56

The Red Sox and lying to the wife examples were hyperbole, of course, but if the House votes to impeach a President for, let’s say, failing to improve the economy, there is no appeal or recourse to the decision. It’s not justicible. It’s a purely political question. As a matter of practicality, I cannot imagine the House acting to impeach on other than legally sufficient grounds, but the reality is that the House may impeach when it pleases. After all, the first impeachment was for the violation of a law that was clearly unconstitutional, and nothing stopped it.

57

So…A president can go before Congress, say “We need to go to war, and here’s why”, proceed to lie through his teeth, and as long as he isn’t under oath, all is copacetic?

If that’s true, maybe nobody in Congress should vote to authorize a war unless those asking for permission are under oath…It simply amazes me that I can’t legally tell somebody to “go fuck yourself” while the Senate is in session, yet I can utter falsehoods that affect policy, and all is perfeclty fine so long as I don’t swear on the Bible what I say is true. If this is correct, it’s…amazing.

58

One more time. With the exception of the uranium thing, which we can all agree was dishonest because (a) Bush said it (b) but the White House had evidence to the contrary, what are these lies you are talking about?

If you mean to say the fact that we have found no WMD in Iraq, how do you know that the Administration KNEW that there were no WMD when it said that there was? Isn’t it more likely that they were simply wrong?

59

See the 3rd post in this thread (by Early Out).

60

:stuck_out_tongue: :stuck_out_tongue: :stuck_out_tongue: :stuck_out_tongue: :stuck_out_tongue: :stuck_out_tongue: :stuck_out_tongue: :stuck_out_tongue:

Shodan, have you been asleep for the past year? There is plenty of evidence that Bush intended to defraud Congress, and succeeded. He had no reason to believe any of the things he said about Hussein’s WMDs or support for al-Qaeda.