A BUZZFLASH INTERVIEW
The very process of getting those subpoenas out there, getting witnesses out there, getting this evidence that we already have in the public record, into a hearing format, is essential. The more we can illuminate the truth, the more people are going to understand ... we have to have these hearings in Congress. That is what I’m advocating.
-- Elizabeth de la Vega, author, United States v. George W. Bush et al.
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It's important to know this about Elizabeth de la Vega. She is a former federal prosecutor, who was an Assistant U.S. Attorney in Minneapolis as well as a member of the Organized Crime Strike Force and Branch Chief in San Jose, California.
So, like Patrick Fitzgerald, her specialty has been prosecuting people who break the law.
In United States v. Bush et al., de la Vega lays out an actual indictment of the Bush Administration for crimes committed based on violation of U.S. law. She then proceeds to take the reader through a simulated presentation of the indictment to a grand jury.
In short, she brings Bush and his cohorts to the court of justice and makes them subject to the rule of law.
United States v. Bush et al. is not about impeachment, per se, because it is about a criminal indictment presented in a grand jury. The actual grand jury proceedings in the book are simulated, of course, but the facts that the indictment is based on are real.
Compelling reading for those who want to hold the Bush Administration accountable in a court of law.
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BuzzFlash: As an analogy for our readers, looking back at the O.J. Simpson case, he was acquitted in a criminal court of law but found guilty in the civil case. A lot of people found this confusing. In our justice system, we really have quite a varied field in terms of seeking accountability. Given that context, what area of the law are you talking about in your book United States v. Bush et al. and in the excerpts that have been posted at TomDispatch.com?
Elizabeth de la Vega: I’m talking about criminal law, and a specific federal criminal law.
BuzzFlash: Many people do believe that Bush and others in this Administration have violated laws. Many people are advocating impeachment. Let’s clarify that this is not a book about impeachment.
Elizabeth de la Vega: That’s correct.
BuzzFlash: If it’s not about impeachment, what is it? As a former U.S. prosecutor, what perpective do you take?
Elizabeth de la Vega: Let me just step back a little bit about what I did here. It’s a hypothetical grand jury presentation that sets forth the evidence that relates to one crime -- one specific crime -- which is conspiracy to defraud the United States in violation of 18 U.S.C., section 371. I drafted a hypothetical indictment. It’s not a real document.
I gathered all the evidence that I could find in the public record, which is considerable, about statements that these individuals made publicly, versus the information they had there behind the scenes. Then I set all that out. All of the facts that are alleged in this testimony are absolutely true. The reader is left to decide whatever decision the reader wants to make.
BuzzFlash: I have a few questions about that statement.
Elizabeth de la Vega: Okay.
BuzzFlash: We’ll start with this. There are many different crimes that people have alleged the Bush Administration is responsible for. Of course, the Bush Administration and their supporters say that’s poppycock. There are no crimes. Nonetheless, they’ve been alleged.
You’re really just talking about one specific statute -- the United States Code, Title 18, section 371. There could be other crimes they’re responsible for.
Elizabeth de la Vega: Right. I am not talking about the signing statements, or torture, or the wire tapping, all of which are important, but that’s not what I’m talking about.
BuzzFlash: What is it that your indictment accuses Bush, Cheney, Rumsfeld et al. of violating?
Elizabeth de la Vega: There’s a provision which says that it’s against the law to conspire to defraud the United States. The statute itself doesn’t define what that means, but over the years -- actually more than a hundred years now -- we have what’s called case law that does elaborate on what that means, and does set forth the legal standard that would be given to the jury if they were trying to consider the case. What it means is using deceit of any kind to interfere with or obstruct a branch or agency of government. That’s what the subject is.
BuzzFlash: Is it fair to say that much of what you include in the indictment has to do with the deceptions that are on the record that the Bush Administration employed to lead America into the war with Iraq?
Elizabeth de la Vega: Precisely.
BuzzFlash: One could argue -- well, BuzzFlash argues daily -- that the defrauding is a daily occurrence in the Bush Administration. But you specifically focus on what’s on the record regarding the lead up to the Iraq war.
Elizabeth de la Vega: The reason is that, first of all, I wanted to be able to finish the book. Otherwise I would still be researching and writing, because the fight is ongoing. Also, I had to narrow the focus to a manageable set of circumstances, so people could actually pick up the book and hold it in their hands.
BuzzFlash: We’re dealing with an indictment that you’ve based on the public record, on what is known -- not, as Donald Rumsfeld once so curiously said, about the unknown. In terms of the actual American legal system, who would bring such an indictment? Would it be the Department of Justice?
Elizabeth de la Vega: Yes. If there were such an indictment, it would be the Department of Justice. It would have to be some special counsel, but yes.
BuzzFlash: In essence, are you saying that, based on a hundred years of case law in regards to the specific statute, one could theoretically have a Justice Department that could indict Bush and several of the people in his Administration?
Elizabeth de la Vega: I do want to clarify something here. The President can probably not be indicted, for Constitutional reasons, while he is the President. Given that, my purpose in writing this book is to explain to people that what we have here is, on the one hand, a very standard fraud, in that they used the same phone techniques and so forth that are used in other fraud cases. On the other hand, the scope and the consequences of it are much, much larger, and much more horrific. I have used this very rational format of a grand jury indictment to help people understand that we have evidence of a crime.
Am I saying that they should be indicted right now? No. I’m saying that we have to have hearings, because we know they have committed this crime, and we know that it’s the type of crime that goes to the very heart of governing the country, which is actually a high crime and misdemeanor.
BuzzFlash: Let me just play devil’s advocate here. Remembering that it is a hypothetical indictment, and that you’re a former U.S. prosecutor, suppose that the Bush Administration is over. These people are out of office. Could they then be indicted?
Elizabeth de la Vega: I think I know what you’re asking, but how you’re asking it could slide into these other problems, such as the statute of limitations. If the question is: Does the evidence make an indictment based on legal principles and in line with the parts of the statute, the answer is, absolutely yes. We have much more information than the standard probable cause to believe that the President and others have actually violated the law.
BuzzFlash: This is based on the information that we know, not even including the information that we don’t know but which may be there.
Elizabeth de la Vega: Right. In fact, if a person were to just go over the Senate Select Committee on Intelligence report and compare that to the statements that the President and his associates were making, and applying the law, it’s a very clear case of fraud. Fraud is much, much broader than just lying.
BuzzFlash: I still want to follow this kind of nitpicky legal distinction down the road a bit. In the case of President Clinton, the Supreme Court decided he could be sued in a civil case, and that wasn’t seen as a violation of Constitutional law. Would it have been if the case had to do with the performance of his duties as President?
Elizabeth de la Vega: That's right.
BuzzFlash: But in the case of a president, a vice president, a member of the Cabinet and so forth, the legal remedy for holding them accountable for their conduct in office while they are in office is impeachment.
Elizabeth de la Vega: Certainly, that’s true if you’re the President. It’s probably not true -- or at least it’s an open question -- as to the Vice President. And I do not think it’s true as to the other officers. But as you’re probably sensing, it’s really not an issue that was the focus of the book. My goal was to educate and lay out why this is a crime.
BuzzFlash: If we prosecute for Enron, why don’t we prosecute for this? One is left, after reading your book, saying: Wow, this is a pretty convincing case. But now what do we do?
Elizabeth de la Vega: Well, the “now what do we do,” as I lay out in the introduction, is we have to have these hearings in Congress. That is what I’m advocating. That was the way we got from the awareness of criminal activity on the part of Nixon, for example, to eventual impeachment. There were hearings. Sam Irving had the hearings -- quite famous, and a real long time ago. But that really is the process. My goal is to just get that process going. I think now it looks very promising that we will have hearings.
BuzzFlash: Waxman and Conyers have been chomping at the bit. Now you’ve clarified the hypothetical legal issues that are out there. You drafted a hypothetical indictment. It’s an interesting construction for a book, because you use information from the public record, but you have fictional people testifying.
Elizabeth de la Vega: Well, in most grand jury proceedings, the people who present the evidence are federal agents of one kind or another. The prosecutors gather all the evidence together and then present it in a question-and-answer format to the grand jury. And the grand jurists can ask questions, as well. Given that there is no task force investigating the President, yes, I had to invent some fictional agents. But that, and the fact that there is no grand jury proceeding at all, are the only two things about the book that are fictional. Everything else is fact.
BuzzFlash: Again, it all comes from the public record.
Elizabeth de la Vega: There’s actually much, much more information -- even more information in the public record, some of it from various insiders who’ve come out and made statements. But I pretty much shied away from that, because I didn’t want any information to be based on someone’s credibility, even though I think many of these people are extremely credible. I just used references recognized as fact.
BuzzFlash: Again, you’re a former prosecutor. As a part of your job as prosecutor, you’re familiar with the drafting of an indictment. How do you choose what to put in, what to leave out? Clearly, prosecutors often leave stuff out that is potentially criminal behavior just because it might make the indictment less tight. How did you make a choice in this hypothetical indictment of Bush?
Elizabeth de la Vega: That’s a very good question. The only requirement is that the indictment sets forth the elements of the crime. It gives notice to the person who is charged as to what they are charged with, and it provides some statement of the circumstances of the crime. Usually what you want to do is lay out who the parties are. You want to explain the chronology that led up to the crime, or the genesis of the conspiracy. It includes allegations about the actions and statements that make up the crime. You want to make it clear, and you definitely don’t want to include anything that you can’t prove.
BuzzFlash: Why did you choose this statute? Some people have held out the possibility of charging the Bush Administration under the RICO Act.
Elizabeth de la Vega: The RICO Act actually requires proof of some kind of a financial benefit, for one thing. The conspiracy to defraud statute is broad enough to include all the conduct that I wanted to allege, and yet it’s very simple to prove. The RICO just makes it more complicated.
BuzzFlash: Why do you think more people in the mainstream press, and more of the legal community, are not connecting the dots and demanding accountability for this?
Elizabeth de la Vega: There aren’t that many people who are in a position to actually speak out, but I do think there are many, many people in the legal community who have connected the dots. People who practice criminal law are either prosecutors or defense attorneys. If you’re a government prosecutor, you’re really not in a position to explain to the public that our President has violated the law, unless you plan to resign. And most defense attorneys are not fond of explaining why people have committed crimes. They’re in the business of explaining why they haven’t committed crimes. As a former government prosecutor, I just happen to be in a position to do this.
As for the media, I believe they have been intimidated by this Administration, and I think the corporate media really controls what is said. We just had NBC finally come to a decision about what to call what’s going on in Iraq. That is quite indicative of the mindset we have in the mass media right now. They seem to be afraid of their own shadow.
BuzzFlash: The Washington Post is still saying that it’s not a "civil war" because the White House has not declared it one.
Elizabeth de la Vega: We have a real problem with the media just telling things like they are. I don’t understand it, and I certainly think it’s wrong.
BuzzFlash: Let’s take one example of how that played out. The first Downing Street memo indicated that the White House had told the British government that they would fix the facts around the policy to justify the war with Iraq and sell it to the public. Many of the net roots people and others said, why aren’t you reporting on this -- this is a bombshell memo! It took, if I recall, two or three weeks for the Washington Post and The New YorkTimes to run a story. The response of the mainstream media was, well, everyone knows the Bush Administration lied about this. That’s not news.
Elizabeth de la Vega: That is what’s happened here, which is precisely why I wanted to write the book. It is not okay for the Bush Administration to lie to the public about this war, or about Social Security, or Medicare, or drug policy, or anything else. I think that those who are in the media are simply not doing their job. They should be absolutely outraged.
In the book I go over the Downing Street memos in some detail, because they corroborate and flesh out other evidence that indicates that the President and his staff had not only decided to go to war, but had actually been attacking Iraq for months and months.
I think that the media kind of led the way in letting the American public not expect anything out of our government officials. Another thing I point out is that, regardless of what you think morally or ethically about government officials lying to the public, they also have a legal obligation, once they take their oath. That legal obligation is for them to follow the law of the United States.
BuzzFlash: Leading up to Clinton's impeachment trial, the Republicans kept using the phrase: Well, he lied. He took an oath while he was being questioned by prosecutors, and he lied. Therefore, he broke the rule of law. Doesn’t matter if it was about a personal incident.
Yet we see, as you point out in your indictment in United States v. Bush et al., there is ample proof that the Bush Administration lied and defrauded the American public. Sometimes people forget this -- that it’s not just politics -- that they violated the rule of law.
Yet, in the Republican Party -- I’m asking a political question here -- suddenly "the rule of law" doesn’t matter anymore. This Administration feels it is above the law because it is pursuing, in their own minds, some higher calling. It’s not clear what the mission is that Bush still says he’s trying to accomplish, but they feel the end justifies the means. Breaking the law is justified by whatever the mission is.
Elizabeth de la Vega: That is a political question. The Republicans and Democrats both should be absolutely outraged by the conduct of this Administration. I would venture to say that many Republicans who are not speaking out are privately outraged. But on the one hand, the Republicans want to protect their President. They also want to protect themselves in the next election.
It is the Congress' obligation to oversee the President. The Republicans focused on war and everything related to war as almost their entire election platform. The Democrats have been afraid to do anything about it, because they’re afraid of the fallout -- incorrectly, I believe. So neither side has really stepped up to the plate, unfortunately.
BuzzFlash: I know from reading your book and from what you’ve said today that you feel we need investigations by Congress. Let's assume that all your readers say, okay, you’ve convinced me. I’ve read this indictment and I’ve read the hypothetical proceedings before the grand jury in your book. This, to quote George Tenet, is a slam dunk. Guilty as charged. These people in the Bush Administration, including Mr. Bush, have indeed broken the law in multiple counts, and are felons.
Elizabeth de la Vega: Yes.
BuzzFlash: Well, they are not going to be prosecuted by the Department of Justice because their consigliere, Mr. Gonzales, heads the Department of Justice. And there no longer is a provision for an independent counsel like Ken Starr.
Elizabeth de la Vega: Right.
BuzzFlash: No one is going to be able to pursue this Administration without Department of Justice oversight. They will not make the mistake of appointing someone like Patrick Fitzgerald again to pursue something like this. So what is left? Do you think Bush should be impeached? Many of our readers would say, yes, that this is the only recourse left to us. What is your response to that?
Elizabeth de la Vega: As I said before, the book is not about impeachment. I believe that the facts do set forth grounds for impeachment. Impeachment is a process. And the way to begin it is for Congress to begin having hearings. That’s what happened in the Watergate case, and that is what needs to happen now. It’s difficult to get that process to happen. But I think the more people who understand it, the more people who are educated about it, the more likely it is that we will get that process going. And I do think that we are going to have these hearings, so that’s one good thing.
BuzzFlash: Cheney was being interviewed before the election on one of the Sunday morning talk shows. He was asked whether, if the Democrats regained control of the House and began investigations, and there were subpoenas, would he comply with them? Paraphrasing, he said, “It’s always been the position of the Executive Branch that they do not need to comply with subpoenas. I don’t think that position would change, nor is there reason to change under this Administration.” So, he was setting up the scenario already that they will not comply with subpoenas. Given that they’ve packed the federal bench with very partisan judges, I guess the expectation is that they’ll find a judge to uphold their defiance of the subpoenas. Cheney did not have to comply and disclose who was on his energy task force, previously.
Elizabeth de la Vega: I guess you’re asking what’s the point of doing anything?
BuzzFlash: I’m just saying that that’s their strategy.
Elizabeth de la Vega: Right. Their strategy is to put up roadblocks. And the strategy of the people who want the right thing to be done is to keep pressing forward. You really can’t stop doing, and pressing forward with trying to get the right thing done, because you know there are going to be roadblocks. Of course there are going to be roadblocks. These people have been deceiving the public and obstructing justice, essentially, for years -- ever since they got there. But that’s not a reason not to go forward.
In fact, it’s a reason to go forward. You can never know what the outcome is going to be. The very process of getting those subpoenas out there, getting witnesses out there, getting this evidence that we already have in the public record, into a hearing format, is essential. The more we can illuminate the truth, the more people are going to understand. We don’t know how it’s going to turn out.
BuzzFlash: As a prosecutor and as someone whose career involved deciding when the law was being broken, you’ve decided that the Executive Branch has repeatedly broken the law. Some people would argue that, while that may be true, it would be too traumatic for this nation to go through another impeachment, to see another president brought down. It would destroy the credibility of the government and the trust that people have in it. How do you respond to that?
Elizabeth de la Vega: The people who’ve destroyed the credibility of the government are the elected officials who have not fulfilled their obligations to comply with the law and to be straightforward with the American people. At this point, we haven’t even had any hearings, and more than half the people in the country believe that they were deceived about the war. That’s not something that we should just sit down and take. We are entitled to have truthful information from our elected officials.
If we allow them to just keep doing it, neither party benefits from that because how do they know who’s going to be the President the next time? So that would be the answer to that part of the question.
But the other thing is, can the country take it? This system is much, much stronger than these people who are in office right now. I think, in order to preserve the system -- because the President has used this war rubric to justify so many other abuses of power -- in order to preserve the checks and balances, we have to fulfill what these various obligations are of the various branches of the government. That's why it’s absolutely essential that we go forward, and I think the country can take it, and would benefit from it.
BuzzFlash: Your book is fascinating because it reads like an actual indictment. You present indisputable facts, but use a fictional presentation to a hypothetical grand jury. Do you believe that, if the indictment you crafted were presented to an actual grand jury, the grand jury would choose to indict?
Elizabeth de la Vega: There is certainly evidence that would justify a grand jury doing that. One of the things that I do continue to have faith in is the precedent. If the jurists are allowed to actually have the information -- and laying out information to juries is something that I did for 21 years -- most of the time, when they get the information, they make the right decision. They apply the law to the facts. In this case, when you apply the law to the facts of what the President said, and what they said to the public, versus the information they had available to them behind the scenes, we know that they committed fraud. It’s the rational conclusion. So a jury would return an indictment.
BuzzFlash: Elizabeth de la Vega, thank you very much for this very intriguing, innovative and persuasive book. We hope it gets a lot of people thinking and moves the investigations forward.
Elizabeth de la Vega: Thank you.
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BuzzFlash Interview conducted by Mark Karlin.
United States v. George W. Bush et al. (paperback), by Elizabeth de la Vega, a BuzzFlash premium.
United States Code - TITLE 18 - CRIMES AND CRIMINAL PROCEDURE - PART I - CRIMES - CHAPTER 19 - CONSPIRACY Section 371. Conspiracy to commit offense or to defraud United States: 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 maximum punishment provided for such misdemeanor.
A BUZZFLASH INTERVIEW