There are adjectives that come to mind when describing famed former prosecutor and renowned author, Vincent Bugliosi, who for forty years has set the standard for prosecutorial skill in America. Some are intrepid, brave, independent, brilliant, driven, indomitable, respected, focused, relentless and confident. Each fits perfectly well. But after interviewing Mr. Bugliosi at his California home, and reading his latest book, "The Prosecution Of George W. Bush For Murder," I am compelled to add two more adjectives to that already formidable list: PATRIOTIC and ENRAGED. Beyond all other characterizations one may ascribe to Vincent Bugliosi, the principal descriptors TODAY for this inherently honorable man are PATRIOTIC and ENRAGED - emanating equally from his love for his nation.
Of course, there's another descriptor that has long been associated with Vincent Bugliosi. That descriptor is JUSTICE, to which Bugliosi has devoted his life. Yet not until now - not until George W. Bush caused the murders of over 4,000 Americans and countless innocent Iraqi men, women, children and babies, has JUSTICE assumed an even greater role for Bugliosi - arguably this nation's preeminent prosecutor. JUSTICE has morphed from a noun to a verb - enacted by Bugliosi with a vengeance - fueled by his intense love of nation, his profound knowledge of law, and his unparalleled ability to dispense it. Vincent Bugliosi is a man of action. While others speak of JUSTICE, Bugliosi creates the ways to achieve it - and he has done so in this book.
Thus it is, that when legendary prosecutor Vince Bugliosi writes a book that establishes the case to prosecute George W. Bush for murder in an American court, for those who know the law, neither the book nor the case are ignored. As told to me by Elizabeth De La Vega, veteran Justice Department attorney who served under Presidents Reagan, Bush I, Clinton and Bush II, and author of the New York Times Best seller, "United States v. George W. Bush et. al.":
"Vincent Bugliosi is a consummate prosecutor who has now put together yet another compelling case. His is a cry for justice on behalf of the thousands upon thousands of people who have suffered irreparable harm -- and the many of who have died -- as a result of the criminal conduct of the President of the United States. This passionate and powerful brief should not be ignored."
Thankfully, as De La Vega aptly implores, Vince's book is NOT being ignored. NOT by his patriotic colleagues in law who seek justice against an Administration that misled their nation into a wretched unnecessary war. NOT by the patriotic American public that's witnessed its beloved nation toppled from human rights enforcer to human rights destroyer. And NOT by the legions of activist patriots who have placed their own freedoms at risk again and again to end the unConstitutional reign of George W. Bush - despite the complicit Legislative and Judicial Branches which failed in their Balance of Powers. As shared with me by Stephen Rohde, Constitutional lawyer, author, and former president of the ACLU of Southern California:
"At a time when the Democratic leadership has utterly failed to pursue the remedy of impeachment provided by the Founders in the Constitution, Bugliosi's innovative challenge to indict Bush for murder should be pursued by attorneys general in every state where men and women have died due to Bush's criminal acts. This Nation cannot allow Bush to leave office and live out his days being paid huge fees to give speeches and serve on corporate boards instead of being tried for the deaths and injuries he has caused. Whether he is forced to stand trial for murder or for war crimes and crimes against humanity, George W. Bush must be held accountable."
Which brings us to Vince's CALL TO HEROES. The heroes in Vince's case are those who would prosecute George W. Bush for murder in an American court of law - which includes the hundreds of city and county District Attorneys, the fifty State Attorneys General and any of the ninety-three U.S. Attorneys in the nintey-three federal districts for whom Vince established jurisdiction to proceed with the case. Vince is certain that amongst this vast population of prosecutors, there is at least one patriot who loves this nation deeply enough to hold Bush accountable for the murders of over 4,000 service men and women whom he lied into going to war. The good news for whomever does step forward to take George Bush to task is the promise of assistance from Bugliosi himself - who as a prosecutor is held in the highest regard. In the words of famed defense attorney F. Lee Bailey, Vince is "the quintessential prosecutor." For Harvard Law Professor, Alan Dershowitz, Vince is "as good a prosecutor as there ever was." Thus, Vince's offer to serve as consultant to whomever accepts the case should be incentive enough to take it on - especially since whomever does take it on will encounter instant fame. Vince has also offered to accept a Special Prosecutor appointment from any U.S. Attorney or District Attorney who would like him to try the case.
There are certainly enough family members of murdered service men and women who want George W. Bush tried for their murders. This afternoon I spoke with Peace Mom Cindy Sheehan whose son Casey was killed in Iraq. Cindy, who's mentioned in Vince's book, is eager to see Bush tried for Casey's murder. She'll be reaching out to Vince to tell him that if prosecution is possible, she's on board on Casey's behalf.
As I've previously noted, Vince's patriotism is palpable - in his presence, and in his book. By any standards, this 73 year old son of hard working Italian immigrants has achieved his American dream. He's the first in his family to finish college. He's a brilliantly successful lawyer and one of America's most renowned authors. Yet despite his great accomplishments, Vince's focus is on the future - with minor reflection on his past. Right now, the driving force of Vince's life is prosecuting George W. Bush for murder - a desire that first took hold on August 13, 2005, when he watched Bush on television speaking with reporters from his cushy Crawford ranch. As Vince tells it:
"In the middle of some of the worst atrocities in Iraq, with the surivors of victims screaming out in anguish over the unspeakable horror of it all, Bush after a hearty breakfast tells the media: Quote: I'm gonna have lunch with Secretary of State Rice, take a little nap, I'm reading an Elmore Leonard book right now - knock off a little Elmore Leonard this afternoon - go fishing with my man Barney [his dog], have a light dinner, then head for the ball game. So it's a perfect day. End quote. As I talk to you [Linda] right now, there are a hundred-thousand dead - maybe a million - and this guy is off having a great time! I said to myself, 'No, you son of a bitch! You're not gonna have another perfect day for as long as you live if I have anything to say about it because I'm gonna put a thought in your mind that you're going to take with you to your grave. That's the least that I can do for these thousands of poor soldiers coming back from Iraq in a box or in a jar of ashes. And the thousands upon thousands of innocent men, women, children and babies dying because of your war. And that thought is that there's no statute of limitations for murder. They went after Pinochet after 33 years - and then he died."
Coming from Vincent Bugliosi, a man who has proven time and again that he has no fear, this is a threat George Bush should take seriously. Vince will not back down. One must remember that Vince Bugliosi is the author of "Helter Skelter." He's the guy who prosecuted Charles Manson in a case where a defense attorney was found dead - and though it was never proven - is believed to have been killed as retaliation by Manson Family members. Vince was the hands-on prosecutor who publicly defied Manson's threats of retribution. He's fearless.
In retrospect, it's interesting how so many physically slight men, like Vince Bugliosi, Ron Paul and Dennis Kucinich, stand so tall against injustice. Equally interesting is how powerful corporate entities like major publishing houses and media conglomerates, succumb willingly to the same.
Despite his literary successes, the same publishing houses that would ordinarily vie for a Bugliosi book, passed on "The Prosecution Of George W. Bush For Murder" - a testament to the incivility of the Bush administration and the level of fear it engenders. Gratefully, Vanguard Press took the plunge. When I asked Vince why corporate media and large corporate publishers ignored his book, he responded with:
"The left is afraid of the right but the right's not afraid of the left." Those on "the right" are terribly mean, evil and bad people."
For Vince it's as cut and dry as that. But he has yet to meet the real left - the fearless marchers, protesters, and bloggers who have NO fear of "the right." Vince's idea of the left is corporate media - which he still calls liberal. For all his renaissance-man-persona, there's one area where Vince trails behind. TECHNOLOGY!!
Vince doesn't use a computer. He writes his books long hand on canary pads. He has no email address, doesn't surf the web, doesn't google, doesn't have a cell phone, and doesn't know the rest of us exist! He laughs when I tell him the blogosphere has become the mainstream. He doesn't know what a blog is, or a website. He's amused by the iPod I use to record our talk, and amazed by the iPhone I use to take his photo (above). Yet for all his lack of technology savvy, he did comprehend that without one corporate TV appearance and no major newspaper review, his book still debuted at #17 on the New York Times Best Seller list and at #30 on Amazon.com. Three weeks ago, when his book first launched to a corporate media blackout, his book signing lines at Book Expo America in Los Angeles were two hours long. When I explain to Vince that the internet drove that enthusiasm, he begins to catch on.
On June 13th, after an appearance on DemocracyNow! with Amy Goodman and Juan Gonzales, whom Vince hadn't previously heard of, his book sales spiked like mad. When I explained to him that Amy has the most successful radio and television news program in independent media, the message sinks in even more. The fact is, after all the major publishing houses turned down "The Prosecution of George W. Bush For Murder," Vanguard, who published the book, greeted Vince by saying,
"Vince this book has to be published. This is the most important book of your career."
What's interesting is that Vince clearly knew the importance of this book - but he didn't know the rest of us KNEW IT TOO - or that we even existed. How ironic that with all the conversation on the blogosphere about prosecuting George W. Bush, the hero we've been waiting for didn't have a clue that we were waiting!
As a lay person with no legal background, I have no idea how sound Vince's case is - although it appears impressive to me. But I've reached out to enough legal scholars to know how respected Vincent Bugliosi is. Dr. William Pepper, the famous and controversial attorney who defended James Earl Ray in the 1999 civil trial (supported by Martin Luther King's family) where the jury found Ray not responsible for MLK's assassination, and who differs with Vince on Vince's 1650 page treatise on the JFK assassination, told me:
"I certainly support the concept of prosecuting this president and those around him. The concept of a criminal prosecution within the United States by local prosecutors is certainly a creative idea that Mr. Bugliosi has put forward. Because of the broader violation of international criminal law there should be the prosecution of all in this administration by the U.S. Department of Justice. Vince Bugliosi has established an exemplary record as a prosecutor and thoughtful legal analyst. His perspective should merit serious legal attention."
I also reached out to respected Constitutional attorney and George Washington Law Professor, Jonathan Turley, who is a frequent legal analyst on television and who has testified before Congress. Professor Turley responded by email saying, "I have not had a chance to look at the book because I am in rather intense litigation. I will not be able to read it for a couple weeks, unfortunately, so I will not be able to comment at this time." Constitutional scholar and Duke University Law Professor, Erwin Chemerinsky, responded by Blackberry from Europe stating, "I am on vacation and have not seen Vince's book. I'll get a copy when we get back early this coming week." America's most gifted legal professionals are paying attention to Vince's book with full intent to read it.
The fact is, Vincent Bugliosi is as decent a man as you'll ever meet. He's written the book that others are too afraid and too unskilled to write. America's good fortune is that there is NO ONE BETTER than Vincent Bugliosi to write the case to prosecute George Bush. Please support Vince on his critically important mission. Do ALL you can to spread the word. Encourage every legal scholar in America to make the case for the prosecution of George W. Bush. Encourage every talented prosecutor to take this case on. Buy the book and pass it on. Bush leaves office in less than 7 months. Let's make certain he doesn't have a PERFECT day for as long as he lives!
On a slightly different note: The comparisons between John McCain and Barack Obama are stark. I'm committed to electing Obama - although he often disappoints me. Yesterday was one of those disappointing days when he announced his support for the FISA compromise that lets the telecoms off the hook. To say I'm furious at Obama is an understatement. Yet, if John McCain is elected there is the distinct possibility that in addition to bombing innocent people, ending Roe v. Wade, and supporting torture, he will pardon George W. Bush - which removes any possibility of criminal prosecution within the United States. As angry as I am at Obama right now, I don't believe he'd have the gall to pardon Bush. If Obama even remotely entertains that notion, he shouldn't be allowed to serve.
Linda Milazzo is a Los Angeles based writer, educator and activist. Since 1974, she has divided her time between the entertainment industry, government organizations & community development projects and educational programs.
Linda began her writing career over 30 years ago, starting out in advertising and promotions. From 1976 to 1989, she operated an independent public relations service providing specialty writing for individual and corporate clients. For the past six years, Linda has focused on political writing. Her essays, letters and commentaries have appeared in domestic and international journals, newspapers, magazines and on dozens of respected news and opinion websites. She's an educator and creator of a writers' program she's taught privately and in public schools. She currently facilitates an advocacy writing workshop and is developing an advocacy writing program to be implemented in public and private educational institutions and in community based organizations.
A political and social activist since the Vietnam War, Linda attributes her revitalized-fully-engaged-intense-head-on-non-stop-political activism to the UNFORTUNATE EXISTENCE OF GEORGE W. BUSH and her disgust with greed-ridden American imperialism, environmental atrocities, egregious war, nuclear proliferation, lying leaders, and global tyranny!
Last week, Rob interviewed him and I was impressed with his level of passion, and solid credentials that allow him, of all people, to write this book. I ordered it online after the interview and can't wait to read it.
Now actually finding Attorneys General with the spine to go after Bush is a whole 'nuther matter. We know Complicit Congress won't do it; they're just as guilty for funding these illegal wars. (ergo, impeachment is off the table - wouldn't want to expose themselves to criminal prosecution after we convict Bush)
Bugliosi encouraged listeners to write their Attorney General and demand that Bush be prosecuted.
David Swanson recently said, "If the opposite of pro is con, then the opposite of progress is..." We surely cannot rely on this criminal congress to uphold the law, especially given their recent gutting of all FISA protections and their granting immunity to the telcos that illegally spied on US citizens.
Thanks for an in-depth piece, Linda.
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Rady Ananda (97 articles, 246 quicklinks, 19 diaries, 699 comments)
on Sunday, June 22, 2008 at 1:56:37 PM
It's less than a month old. Next month he's sending a copy to AGs and DAs across the nation to present his case.
What you don't realize, and what I failed to make clear, is that Bush can't be prosecuted until he leaves office. That's 7 months away. Rather than succumbing to negativity, perhaps you should prepare to be part of the movement that brings George Bush to justice.
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Linda Milazzo (107 articles, 0 quicklinks, 16 diaries, 136 comments)
on Sunday, June 22, 2008 at 3:35:23 PM
I agree. So far - while there is a lot of angst, a lot of internet blogging, an occasional demonstration (ignored by the politicians and the main stream press) and minimized (as if the wacko's are at it again).
No Leaders, they have all given up.
The Democrats are worse than the Republicans. I can't even pretend there will be change anymore. I just don't believe.
Is there going to be change? Then start showing us some.
I like the "idea" of Vincent Bugliosi's book and I support it (and ordered it) but we have to wait 7 months for Bush to be out of office. Besides that there is the complicity of Congress - who will hold all of them responsible for murder?
And of course, 911 - but that's the elephant in the room we all completely ignore in polite social circles.
It's all so amazing, and frightening.
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August Adams (10 articles, 0 quicklinks, 1 diaries, 430 comments)
on Sunday, June 22, 2008 at 8:47:25 PM
And please let's hold them accountable for lawbreaking
Passing legislation empowering the FBI to arrest without warrant or probable cause, weakening hte power of the Judiciary, gag orders, torture, warrantless wiretapping, etc....are no jokes.
What's to come is a very dark and scary story.
Please let's not forget this part of the conversation, as regards holding Congress responsible---and in contempt.
And please don't get me wrong: I too support whole-heartedly the investigations into 911 and the war and murdering without any cause except half-truths and major distortions thereof, based on outright lies, etc.
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Kathryn Smith (89 articles, 2 quicklinks, 35 diaries, 345 comments)
on Sunday, June 22, 2008 at 11:48:09 PM
are working for "The other side". Paid to be here flinging taunts, negativity and stirring up trouble. That's all you seem to do, every time. DOn't you think that discredits you?
Friends, my suggestion is to ignore. Trolls get bored and leave when ignored. They feast on adrenalin and chaos. Don't give this troll any food. Just a suggestion. Thank you all.
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Kathryn Smith (89 articles, 2 quicklinks, 35 diaries, 345 comments)
on Sunday, June 22, 2008 at 11:44:24 PM
A prominent lawyer lays out a compelling case in THE PROSECUTION OF GEORGE W. BUSH FOR MURDER. Staggering evidence is collected against the president in a startling new book.
"The preferable venue for the prosecution of George W. Bush for murder and conspiracy to commit murder would be in the nation's capital, with the prosecutor being the Attorney General of the United States acting through his Department of Justice. This book, however, establishes jursidiction for any state attorney general (or any district attorney in any county of a state) to bring murder and conspiracy charges against Bush for any soldiers from that state or county who lost their lives fighting Bush's war, which as you can see applies to every state in this nation", excerpt taken from renowned prosecutor Vincent Bugliosi's book "The Prosecution of George W. Bush for Murder".
Where are the Republican conservatives? "What reason could you have for arguing this other than you are a conservative Republican and Bush is a conservative Republican, and therefore anything he does, even murder, is just fine with you", excerpt from "The Prosecution of George W. Bush for Murder".
Where are the liberal Democrats? Knowing our soldiers may be getting murdered in Iraq as a result of George W. Bush's "command responsibility"?
Opening statements please.
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Gene Cappa (8 articles, 0 quicklinks, 9 diaries, 155 comments)
on Sunday, June 22, 2008 at 5:24:20 PM
This whole thing is sickening… Republicans cheering up the dumbest president ever and encouranging him to act more reckless than Wiley Coyote; and the spinelesss democracts bending over and serving as floor mats in cahoots.
Sick. Sick. Sick.
Certainly not a country to feel proud of (for my part). In a recent episode of Limbaugh-style talk show, Reagan (mut) called for the killing of ALL liberals who according to him were sending letters to the soldiers in Iraq claiming that 911 was an inside job. Literally, and repeatedly called for the murder of ALL liberals, unpatriotic. “I’ll even pay for the bullets” he said.
Is this a "nation of laws", or is it only when repudicans say so as they screw it time after time.
Can I call for his murder and pay for the bullets and not get in touble?
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Frank gr (1 articles, 0 quicklinks, 1 diaries, 49 comments)
on Sunday, June 22, 2008 at 7:02:27 PM
He can potentially go around doing anything to every single spouse, mother and daughter (or anyone for that matter) and the repubs would defend him and even thank him for it and ask for his autograph.
That would be one crime he has not commited yet…Don’t hold your breath.
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Frank gr (1 articles, 0 quicklinks, 1 diaries, 49 comments)
on Sunday, June 22, 2008 at 7:15:31 PM
One death would be enough to impeach, prosecute and imprison, but we have to include many, many more deaths than that. Lets not forget the million Iraqis and the deaths from the 9/11 attack. This administration is responsible for all of these deaths and who knows how many more?
What is puzzling is how the members of Congress can continue to ignore the crimes that are staring us in the face. One can be slightly encouraged by the efforts of Dennis Kucinich and Robert Wexler but why, please tell me why the whole of Congress has not signed on to the articles of impeachment?
Surely there must be more courageous members of that august body who are willing to stand up and say, "ENOUGH!" Are there no constituents of these members of Congress who are writing, calling and screaming at their representatives to get off their fat butts and do something about this heinous situation. I personally send out at least 12 letters a day to my senators and representatives and newspapers crying for some action to stop the killing and robbing and pillaging. We are all being had. What does it take to get that point across to people?
Thanks to Rob Kall for his efforts to get out the word but how do we get the MSM to report the events that those of us who read this site know about? How do we get the truth out to the world? I know that there is reason to fear this administration because I am being targeted for my efforts but if we could get Congress to impeach and rid us of this scourge there might be hope for us all.
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Caronome (0 articles, 0 quicklinks, 1 diaries, 202 comments)
on Monday, June 23, 2008 at 8:02:48 AM
I can find nothing that says a sitting president cannot be prosecuted for a felony. Suppose GWB raped and murdered a woman in broad daylight in front of a hundred witnesses. Would we have to wait 7 months to arrest him? I don't think so. Here's an excellent piece on this very matter.
Liberty & Justice,
SJ
www.spartacusjones.com
Criminal Prosecution of an Incumbent President By John H. Kim, Esq.
“….in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.” Thomas Paine, Common Sense 57 (Philadelphia 1776) I)
Introduction
Evidences of President Bush’s violations of international law and federal criminal laws are growing daily. The recent disclosure of the secret “Downing Street” memo strongly suggests that the Bush administration deliberately misled the American people in the 2003 invasion of Iraq. 1 Add to this the continuing reports of the U.S. violations of the international humanitarian and human rights laws in Iraq, Afghanistan, Guantanamo Bay, and other secret detention facilities. Above all, consider all the wanton destruction and killing of more than 100,000 Iraqi people 2 and the unnecessary deaths of more than 1,600 our soldiers! Enough is enough! It is about time for the American people to ask whether President Bush should be held accountable for the crime of aggression, torture, war crimes, and crimes against humanity under the principles of the Nuremberg Judgment. It will be indeed a travesty of American justice if only a handful of the low-ranking soldiers involved in the torture of the Iraqi detainees at Abu Ghraib are prosecuted, but not the high officials of the Bush administration who made the key policy decisions for the war, treatment of detainees, and occupation in Iraq. Can an incumbent President and other high government officials of the United States be indicted and prosecuted for their criminal actions, aside from being impeached by the Congress?While there are different legal opinions regarding criminal indictment of an incumbent President, there is a general consensus that Vice President and other “civil officers” of the United States can be indicted and prosecuted while they are still in office, prior to impeachment. This article will show that there are no legal barriers to a criminal prosecution of a sitting President. The best way to prove this truth would be to test the law in the federal court. A clear decision by the U.S. Supreme Court on this question will go a long way in the further promotion of American justice and democracy. II)
Prosecution of Vice President and Other Federal Officials
While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers” of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment. There are numerous legal cases that have firmly established this rule. For instance, in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state ofNew York and New Jersey. Burr never claimed any immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.
Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew was governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then-Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.” 3 Subsequently, the Office of Legal Counsel of the Department of Justice, under President Clinton, reaffirmed Bork’s conclusion, stating that “the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.” 4
This seems to be, undoubtedly, the current position of the U.S. Department of Justice under the Bush administration as well.
III) The U.S. Constitution and the Judicial Interpretation
Does the Constitution really provide such an immunity exception for the President? The answer seems to be no for many reasons. Above all, no provision in the Constitution explicitly grants the President immunity from criminal prosecution. The only provision that provides any explicit immunity, for limited purposes, is for Members of Congress while they are in session. 5 The most relevant and contentious provision in the Constitution is in Article I, Section 3, Clause 7: “Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”(underline added for emphasis). From this, it is clear that an impeached President can be prosecuted thereafter. Does this mean an impeachment must always precede a criminal prosecution? How about the prosecution of a President who underwent but survived an impeachment process? Can such President be still prosecuted while in office? Many federal judges and Members of Congress, when they were indicted for various crimes, in fact, raised the defense that they could not be prosecuted prior to impeachment or that prior conviction or acquittal in the courts should bar impeachment by the Congress for the same offenses. However, the courts have largely rejected such defenses. 6 In interpreting Art. I, Section 3, Clause 7 (the Impeachment Judgment Clause), the Court of Appeals in U.S. v.Isaacs held that the Clause “does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy…” 7 Thus, federal judges such as Hastings, Clairborne and Issacs were all prosecuted first, prior to impeachment. In the case of Judge Hastings, he was evenacquitted in a jury trial but still impeached by the Congress subsequently. 2
In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other. According to District Judge Gerhard Gesell: “Impeachment trials are sui generic: in several instances in the Constitution,impeachment is distinguished from criminal proceedings….The Framers understood that impeachment trials were fundamentally political….” 8
IV) Immunity of Federal Officials From Criminal Process
It is to be noted that there is a major difference in the American doctrine of immunity from civil liability and immunity from criminal liability. As one law professor observed, “while courts have invented doctrines of official immunity, they have done so only in civil cases, not criminal ones.” 9 In accord with this view, in Imbler v. Pachtman, the U.S. Supreme Court stated that “this Court has never suggested that the policy considerations which compel civil immunity for certain government officials also place them beyond the reach of the criminal law.” 10 In denying immunity for criminal conduct, the Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.” 11 Thus, it is not surprising that the interest of criminal justice and public interest overruled the claims of executive privileges of the President, as Nixon was forced to turn over records of his conversation with his advisers in response to a subpoena in a criminal case. 12 Due to the disclosure of the White House tapes and documents relating to the Watergate break-in, Nixon became the first President to resign his office as the impeachment proceedings started. Although he was not impeached, Nixon faced the distinct possibility of a criminal prosecution after his resignation. Thus, he sought and received a pardon from criminal liability by his successor, President Ford. Even the Congress is in agreement with the above general rule that all federal officials are subject to criminal law and process. In the aftermath of the “Watergate” scandal, the Congress established the office of “special prosecutor” under the Ethics in GovernmentAct in 1978. The law, although expired now unfortunately, specifically authorized the special prosecutor (a.k.a. “independent counsel”) to prosecute certain high officials, including the President. 13
V) Investigation and Prosecution of President
Past history shows that there has been a general reluctance by the special prosecutors to indict a sitting President for various reasons. Chief among these are respect for the office as the Chief Executive Officer and the availability of the impeachment route. However, these personal or policy considerations do not justify a legal conclusion that an incumbent Present cannot be prosecuted. In 1973, President Nixon’s Attorney General named a Democrat, Archibald Cox, as special prosecutor to investigate and prosecute the Watergate scandal. But President 3
Nixon fired Cox because the special prosecutor was investigating him too aggressively. Then, Leon Jaworski was named to continue the prosecution. Although there was clear evidence of Nixon’s participation in “a conspiracy to obstruct justice,” Jaworski declined to prosecute him because he believed that the “impeachment process should take precedence over a criminal indictment.” 14 Nevertheless, his legal staff submitted a legal memo to Jaworski which strongly endorsed the right to indict a sitting President: “As we understand it, the conclusions regarding indictment of an incumbent President reached by the Dept. of Justice, the U.S. Attorney’s Office, and thisoffice, are all consistent: there is nothing in the language or legislative history of the Constitution that bars indictment of a sitting President…..” 15 In the perjury case of President Clinton, regarding his sexual relations with Monica Lewinski, Special Prosecutor Ken Starr also took the easy route by referring the evidences he collected in the case to the House of Representatives for impeachment. Clinton was then impeached by the House in December 1998 but acquitted by the Senate in Feb. 1999. Interestingly, after Starr’s resignation, Special Prosecutor Robert Ray impaneled a grand jury in July 2000 “to consider indicting Clinton after he left office.” 16 Although “sufficient evidence existed to prosecute President Clinton,” Clinton avoided prosecution by striking a deal with Ray on January 19, 2001, the day before he left the White House. The deal required Clinton to admit publicly of giving a false testimony in a judicial proceeding and accept a 5-year suspension of his law license in Arkansas along with $25,000 fine. 17 Although the penalty is civil in nature in connection with a legal disciplinary proceeding, it is significant that Clinton was forced to admit his perjury under a strong pressure of Ray to prosecute him. Thus, it can be argued that a sitting President was subjected to a criminal prosecution process, even though Clinton got away with little punishment. In any case, the general trend in the post-WWII international law has been to deny criminal immunity for heads of state for serious violations of international humanitarian law such as genocide, crime of aggression, war crimes or crimes against humanity. 18 A good case in point is the indictment of then-President Charles Taylor of Liberia for the crime against humanity by the Special Court for Sierra Leone, which was set up by an agreement in 2002 between the United Nations and the Republic of Sierra Leone. Under the current regulations of the Department of Justice, the U.S. Attorney General may appoint an outside “special counsel” to conduct a particular investigation when the prosecution by the U.S. Attorney’s Office “would present a conflict of interest” and such appointment “would be in the public interest.” 19 Since Attorney General Alberto Gonzales worked closely with President Bush as his former White House Counsel, he has
