The Essential Legal Argument: Could Bush Really be tried in a regular Court?

First, my full disclosure. I am not a lawyer. This post is intended to relay the essence of Bugliosi's superior legal mind in making the argument that any federal prosecutor, state attorney general or local district attorney living in a jurisdiction in which a soldier has died in Iraq has the standing to bring an indictment before a Grand Jury and indict George Bush, Dick Cheney, Condoleeza Rice and Karl Rove for the crimes of murder in the first degree, conspiracy to commit murder, and at the very least, murder in the second degree.

It is my hope that it spurs others to action by taking the steps noted in an earlier post:

http://prosecutebushformurder.blogspot.com/2008/07/prosecute-bush-what-you-can-do-today.html

The Prosecution can only proceed when Bush leaves Office.

Bugliosi makes it clear that the only remedy under Impeachment is removal from office. Though he agrees that Impeachment would be a preferable first step, it is not necessary and is certainly not sufficient punishment for the crimes committed and conspiracy that led to these murders.

Remember that after the Watergate scandal and Nixon's resignation from office, he could not pardon himself. There was serious consideration of prosecution for obstruction of justice and illegal wiretapping, but Ford's pardon eliminated this possibility. Bugliosi even acknowledges that he would not have brought charges. In his opinion Impeachment would have been a sufficient punishment for those crimes.

But he contends that murder is another matter and makes the point that for those who say that they could not conceive of bringing a President up on charges in a regular American courtroom, especially for the crime of murder he makes the counter observation:

[If one accepts his legal argument for the ability to indict and evidence of murder, then what are the options?] "Since a regular courtroom is the only place that a president could be prosecuted for murder, and you agree that Bush and his cronies conspired to take the country to war under false pretenses, knowing that they were false, and if thousands, even 50 million Americans, die as a result, other than removing him from office through the impeachment process, would you still conclude that the president should be immune from criminal responsibility?"

The Congressional Authorization of October 11, 2002 would not eliminate the possibility of prosecution

Bugliosi deals with this point head on by noting that fraud cannot vitiate consent. He notes that consent of the victim is not a defense for murder, as in some crimes (e.g. rape, theft). Even if the argument were made that Congress represents those dead soldiers, that consent is nullified by the deliberate fraud Bush made to induce them to give him consent.

The theoretical and legal framework for prosecution

Bugliosi methodically leads the reader through the legal framework and establishes all of the necessary components for bringing a murder charge. Through explaining the legal terms of actus rea and mens rea, he applies these to Bush's state of mind by starting a war with wanton and reckless abandon and indifference to [it's consequences, the loss of] human life.

He addresses the counter arguments of self-defense (e.g. he was protecting the country because it was in imminent danger), by comparing this to the reasonable fear or reasonable man arguments. A prosecution would have to show that he did have a criminal state of mind. Much of his later case presentation deals with how he would deal with the self-defense argument.

He conducts an eye-opening analysis of "malice aforethought" and shows how "premeditation" doesn't have to include "hatred" (malice) for another. A contract killer doesn't necessarily hate his victim. He demonstrates that modern case law means a specific intent to commit a highly dangerous act with reckless and wanton disregard for the consequences and indifference to human life. He also demonstrates how premeditation doesn't have to be long at all, though he argues that Bush and his co-conspirators carefully tried to weave their scheme, even at times understanding the potential ramifications and carefully choosing their words so as not to imply intent.

He discusses implied malice and how it can relate to this case. Though in some states implied malice could only result in a second degree murder conviction, interestingly the state of Texas and others can actually impose not only first degree convictions, but also a death sentence.

Though this brief summary comes short of Bugliosi's thorough treatment, hopefully it gives the thoughtful reader enough information to find out more. In the next post I will summarize the essential case that Bugliosi would make to prove that George W. Bush is guilty of first degree murder.