US Diary: a former prosecutor makes the legal case against Bush

A Fraud Worse than Enron -- by Elizabeth de la Vega

“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.

Why? Because We Are All Kitty Genovese's Neighbors

As an Assistant U. S. Attorney in Minneapolis, a member of the Organized Crime Strike Force in San Jose, and Chief of the San Jose Branch U.S. Attorney's Office, I prosecuted all manner of criminal cases. There were bank embezzlements, government frauds, violent takeover robberies, piloting a commercial passenger flight while under the influence--the pilot had had twenty rum and (diet) Cokes and four hours' sleep before takeoff--and investment frauds, to name a few. Most were interesting; some downright loopy. One hapless fellow, for example, stole a truck filled with frozen turkeys and drove it across state lines to Wisconsin, thereby landing himself in federal prison rather than in county jail. For good measure, the following week -- before he'd been apprehended for the frozen-turkey heist -- he stole a truck filled with packaged frozen broccoli and drove it to Iowa.

Unquestionably, though, the most compelling cases were those that involved victims -- of violent crimes, robberies, or fraud. So I was not surprised to hear the lead Enron prosecutor's comment after the jury convicted former Enron CEOs Ken Lay and Jeffrey Skilling: "What inspired me," John Hueston said, "was just that, that I had spoken to so many employees, so many victims who lost their savings, people who pleaded with me and the other prosecutors to see justice done."

Thanks to Hueston and his team, the victims of the Enron fraud -- a $68 billion dollar crime that left 20,000 people without jobs, pensions, and life's savings -- have obtained some measure of justice. They will never be made whole, but at least the CEOs who orchestrated the fraud have been held accountable. In the case of the largest corporate fraud ever prosecuted in the United States, the system has worked, albeit imperfectly.

Thus far, however, in the case of the vastly broader and more devastating Iraq war fraud orchestrated by the CEO of the United States and his management team, the system has failed. And we are all victims of this fraud. George W. Bush exploited the vulnerability of an entire populace reeling from the September 11, 2001, attacks to manipulate them into supporting a war based on false pretenses. If the financial cost of the President's fraud is astronomical -- $340 billion in direct war costs alone as of August 2006 -- the human cost is incalculable, and far more profound: over 2,500 American soldiers killed and 19,000 wounded; possibly many more than 50,000 Iraqis killed; untold numbers of grieving Iraqi and American family members; hundreds of thousands of Iraqis homeless; and a million soldiers who have been sent to this war and will never be the same.

While we are all victims of the President's crime, we are also all bystanders. The crime is ongoing, happening right before our eyes, and we are all onlookers; we are all, in a sense, Kitty Genovese's neighbors .

As Malcolm Gladwell recounts in his book The Tipping Point, Kitty Genovese was viciously assaulted, stabbed three times, and finally killed, on the way to her Queens, New York, home one night in 1964. Thirty-eight neighbors heard or watched her ordeal, but no one called the police until the attack was essentially over. The murder was universally seen as a horrifying example of modern-day indifference to the plight of others. But, Gladwell explains, psychologists Bibb Latane and John Darley conducted experiments that led to a far different explanation: "When people are in a group . . . responsibility for acting is diffused. They assume that someone else will make the call, or they assume that because no one else is acting, the apparent problem . . . is not really a problem." Ironically, then, it was not that no one called to help Kitty Genovese " despite the fact that thirty-eight people heard her scream; it's that no one called because thirty-eight people heard her scream."

For over a year now, polls have shown that the majority of Americans believe President Bush deliberately misrepresented prewar intelligence. Executive branch officials who deliberately mislead Congress and the public intending to influence congressional action have committed a federal crime. That means that roughly 100 million Americans believe Bush has committed a crime, yet most, like Kitty Genovese's neighbors, are just passive bystanders--although not, I believe, due to indifference.

Indeed, many of us are just watching it happen because we feel powerless to stop it. Hundreds of thousands of people have, in effect, called 911, but not even Democrats in Congress have been willing to answer the phone. It is not that they don't have enough information; it is, our Democratic representatives say, because it is not good political strategy.

The proposition that it is not good political strategy to insist that government officials obey the law is highly debatable. More important, strategizing in the face of an ongoing crime is wrong. Ask any legislator whether he would strategize about possible political fallout before intervening to stop a crime that was occurring in front of his eyes and the response would be, "Of course not." But that is exactly what's happening right now.

So, consider this my 911 call. I'm calling on Democrats and Republicans to do the right thing. And I'm calling on everyone else to do whatever you can to convince Congress to do the right thing. I am not talking about bringing people to justice in the vengeful sense that President Bush employs. I am talking about effecting justice. I am talking, finally, about holding our highest government officials accountable for a complex and calculated program of false pretense, misleading statements, and material omissions -- a criminal betrayal of trust that is strikingly similar to, yet far worse than, the fraud committed by Enron's top officials.

Enron: Misleading Statements and Material Omissions

In July of 2002, President Bush stood before a snappy blue-and-white banner marked "Corporate Responsibility" and announced that he was opposed to fraud. With the enactment of the new Corporate Corruption Act, the President declared, there would "not be a different ethical standard for corporate America than the standard that applies to everyone else. The honesty you expect in your small businesses, or in your workplace . . . will be expected and enforced in every corporate suite in this country." CEOs would now have to personally vouch for the truth of their public statements.

Bush's speech announcing a higher standard for CEOs was itself misleading. Hearing it, one might easily conclude that if the President hadn't pushed for this new law, corporate officers would be legally entitled to lie, cheat, and steal. Not true, of course. The new law, also called the Sarbanes-Oxley Act, did not suddenly, for the first time in United States history, require corporate officials to be truthful, forthright, and fair with the public. Such obligations have been inherent in criminal fraud and other statutes for years.

Indeed, the Enron prosecution did not involve the Sarbanes-Oxley Act at all. The main charge was conspiracy to defraud: that is, conspiring to deceive investors by manipulating financial data, making false and misleading statements, and deliberately omitting important facts, in violation of Title 18, United States Code, Section 371.

Manipulation of data, false and misleading statements, and material omissions -- sound familiar?

At trial, former Enron CEOs Kenneth Lay and Jeffrey Skilling claimed they were not responsible for the deception because they had no idea what their underlings were doing. As the jury was instructed, however, anyone who makes representations intending that the public will rely on them, has an affirmative obligation to make sure that they are true and accurate. Representations made with reckless indifference to their truth are as false as outright lies.

After four months of complex testimony, the jury reached a simple conclusion: Lay and Skilling were responsible for what went on in their company. As school principal Freddie Delgado put it: "I can't say that I don't know what my teachers were doing in the classroom. I am still responsible if a child gets lost."

In other words, the Enron jurors concluded that, legally, the desks of CEOs Lay and Skilling were the final repositories of the proverbial buck. Those jurors were average Americans -- office workers, educators, engineers, a nurse -- and they knew, even without the Sarbanes-Oxley Act, that CEOs should be held to the same standards of honesty and accountability that they would apply to themselves in their own lives. Faced with evidence that Lay and Skilling had repeatedly made public statements that were seriously undermined, if not flatly contradicted, by information and warnings they had received behind the scenes, the jury refused to allow them to avoid responsibility by blaming their subordinates.

Iraq: Misleading Statements and Material Omissions

The techniques of deception used by George W. Bush and his aides are identical to those used by Lay and Skilling. In his July 2002 speech announcing the signing of the Corporate Corruption Bill, the President said, "The only fair risks are [those] based on honest information." The President and his top advisers were acutely aware of the solemn risks posed by an invasion of Iraq, but instead of debating those risks honestly, they developed slogans, including the familiar "risks of inaction are greater than the risks of action" that simultaneously usurped and deflected counterarguments while providing no information whatsoever, honest or otherwise.

Such propaganda, cynical and craven as it is, might not qualify as criminal fraud, but the propaganda alone was insufficient to convince Congress and the American people to invest in the plan for war. To remedy this deficiency and close the deal, the President and his top aides made hundreds of representations, both general and specific, that were carefully crafted to manipulate public opinion. As we now know, many of those assertions were false and misleading. More important, we also now know that President Bush and his advisers had notice and direct knowledge that their representations were seriously undermined and in some key instances, disproved by information that was available to them. Consistently, the President and his aides knowingly conveyed false impressions, concealed important information, made deliberate misrepresentations, and professed certainty about facts that were speculative at best. Such is the definition of criminal fraud -- whether committed by the President of the United States or the CEO of a major corporation.

The only difference between the fraud committed by the Enron officers and the fraud committed by the President is that the latter was far more comprehensive and far more calculated. Even as President Bush stood center stage endorsing honesty that July four years ago, he and his company were setting the stage for another show. If the "only fair risks" speech was a perky Frank Capra clip, the White House's next production would be twenty-first-century H.G. Wells.

As of July 30, 2002, Bush had directed the creation of the White House Iraq Group, a public-relations operation whose sole purpose was to market the war. This team, collectively called WHIG, was co-chaired by the President's closest aides and long-term political consultants, Senior Adviser Karl Rove -- whom Bush has described as "the architect" of his 2004 reelection campaign--and former Counselor to the President Karen Hughes.

By July 30, 2002, the White House Iraq Group had already begun fabricating an ominous scenario that blurred together the September 11 tragedy, mushroom clouds rising over American cities, and terrorists releasing strains of smallpox, interspersed with the shadowy face of a mad Iraqi dictator spring-loaded to attack the United States. They were collecting props--anthrax vials and undated photos showing centrifuge components and unidentifiable buildings where something ominous might be happening, but we can't afford to wait to find out . They were writing the script: power phrases like "Grave and gathering danger" and "We can't afford to let the smoking gun be a mushroom cloud," designed less to inform than to inflame. And, finally, Rove, Hughes, and company were scheduling appearances for the President's War Council members that would begin just a month later, in early September 2002.

It was to be a bravura performance by the President, the Vice President, the Secretary of Defense, the Secretary of State, the National Security Adviser, and many supporting cast members. The production was so well done, in fact, that, like the radio audience terrified into hysteria by the infamous "War of the Worlds" broadcast of 1938, most of us were fooled. Admittedly, we resisted buying the duct tape and plastic sheeting; we may not have wrapped our heads in wet towels to ward off Martian gas like the 1938 radio audience. What happened, however, was much worse: because of Bush's fiction, we agreed to bomb people 8,000 miles away whose only "crime" was that they were oppressed by a violent and cruel dictator.

Undoubtedly, Americans were panicked by H. G. Wells's radio play in part because they were exhausted and nervous in those tough Depression years. But Orson Welles' breathless report of a Martian invasion was never intended to cause panic, nor was it ultimately harmful.

The President's elaborate production was, and still remains, an entirely different story. It was a deliberate effort to create a permanent state of fear in America. And to say it was harmful is like saying that it hurts to get hit by a Mack truck.

Federal sentencing guidelines recognize that one who defrauds a vulnerable victim, such as a salesman who falsely represents the curative benefits of an elixir to a cancer patient, has committed an even more serious crime than one who defrauds a person who is not so "particularly susceptible." The President knew that Americans were "particularly susceptible" in 2002. We were exhausted, and justifiably terrified, not only because of September 11 but also because of the anthrax murders and the random Washington, DC, sniper killings that coincided with the Bush-Cheney administration's push for war.

President Bush and his White House Iraq Group did not merely exploit this fear; they magnified it. Worse yet, the President was the very person upon whom the public relied to protect it from danger and, one would hope, from omnipresent fear itself. Having used the authority of the Oval Office to make people more afraid, having created an even darker backdrop of fear, our highest officials exploited that reliance and the trust they enjoyed by virtue of their positions to sell something they knew the American public would not otherwise have bought. It was as if the cancer victim's trusted personal physician had convinced him that his disease was more advanced than it really was, and then used the same fraudulently heightened fear to manipulate him into buying a bogus cure-all.

In the language of criminal law, the President and his senior advisers have abused a position of trust to defraud the most vulnerable of victims. How would such a case be presented for prosecution? I invite you into the grand jury room to observe:

“Ladies and Gentlemen, tomorrow begins our presentation in the case of United States v. George W. Bush et al. Please remember that you must decide the case based solely on the evidence that's presented and the applicable law, without regard to prejudice or sympathy. In other words, your politics, and any personal feelings you have toward the defendants -- positive or negative -- should have no bearing on your deliberations.”

I will begin by passing out the indictment, so don't forget your reading glasses . . .

(Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California. Her pieces have appeared in the Nation Magazine, the Los Angeles Times, and Salon. She writes regularly for Tomdispatch. This is the introduction to her new book, United States v. George W. Bush et al )