February 24, 2012
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is a former Democratic congresswomen, lawyer, prosecutor and author. Her new book, co-written with Cynthia Cooper, is Cheating Justice: How Bush and Cheney Attacked the Rule of Law and Plotted to Avoid Prosecution—and What We Can Do About It
. She talked to AlterNet about the book
and about holding the Bush administration accountable. (Listen to the audio version
Steven Rosenfeld: Let’s begin by reminding everyone what George W. Bush and Dick Cheney are likely guilty of—and what you would like to see a federal court determine.
Elizabeth Holtzman: My co-author Cynthia Cooper and I took a very long and hard look at what possible federal criminal statutes could be involved in President Bush and Vice-President Cheney’s misconduct during their administration. Their misconduct fell into three main areas: One, deceptions of Congress in connection with taking the country into the Iraq war, which now the figures suggest cost us $3 trillion aside from lives and injuries to American service people.
The second area of possible illegality is the possible violation of the wiretapping laws, which is a federal crime and a felony.
And the third area is the mistreatment of detainees, which can also be a federal crime under the anti-torture statute and it could be under the War Crimes Act
, certainly as it was first written.
So we took a long and hard look at these statutes to see, first of all, do they appear to cover the actions that we know about from the press, from pubic documents, from congressional reports, and from federal documents themselves. Then we took out all the material that had nothing to do with President Bush’s own personal knowledge and Vice-President Cheney’s own personal knowledge. We did not want to charge them with actions of their subordinates. We wanted to make sure that they were knowing actors. Then we took a very hard look at the statutes and we believe that on the face of it, there’s three statutes that are implicated here in terms of possibilities for prosecution.
One is the conspiracy to defraud Congress, which is a violation of section 371 of the U.S. statutes. Then you have the wiretapping, in violation of the Foreign Intelligence Surveillance Act
, which is a federal crime, and third, you have the violations of the anti-torture act. Not only did we take a look at what crimes could cover these misdeeds, but we took a look at possible defenses, such as could they claim that there is a statute of limitations. Or could they rely on their lawyers’ advice—you know, "My lawyer told me that I could torture, so I could torture," that kind of thing.
We went through potential defenses and pretty much said that they didn’t apply, and so we do believe there is what we lawyers call a prima facie
case, a case on the surface, for the appointment of a special prosecutor to investigate whether the president and his top aides violated federal statutes—not state statutes, not international law—but U.S. federal criminal statutes, and we think it is critical for any numbers of reasons to do that.
SR: Who would prosecute?
EH: The Justice Department could do it itself, but I tend to believe that the Justice Department, at least if a Democrat engaged in this, or a Democratic [administration] Justice Department, would be accused of politics. So I think it has to be somebody who is above reproach, somebody who is viewed as a totally professional prosecutor, I mean somebody like Patrick Fitzgerald, whom the public could have confidence in.
I was a prosecutor. I was district attorney of Brooklyn, New York. I know as a former prosecutor that just because it looks like somebody has violated the statute, you can’t make a decision until you take a very hard look at the evidence to whether there really was a crime committed. Is there enough evidence to warrant a prosecution? And what are the countervailing arguments in terms of potential defenses? And so that activity has to be done by a professional prosecutor, somebody that the country could have confidence in. And they did, for example, the special prosecutor in Watergate, the special prosecutor in Iran-Contra; so I think that’s what has to be done and at that point the criminal justice system will proceed. Maybe the prosecutor will say there is insufficient evidence, or maybe the prosecutor will say there is sufficient evidence.
To say that we are not going to enforce our criminal laws when it looks like you have a case on the surface of it is a very bad idea and sets a terrible precedent, because what makes America survive is our Constitution and the rule of law. And the minute you exempt any category of people from having to obey the laws you undermine democracy, and you breed public cynicism. We don’t have to look much farther than what recently happened. The American people are furious and angry and upset that people who are running the banks have not been subjected to any serious criminal investigations even though millions of people have lost their homes to foreclosures and fraud and so forth, and the economy is in shambles.
Now President Obama just responded to that by appointing a new unit in the Department of Justice to take a look at this. And I think that it’s because when people feel that the powerful, the high and the mighty get a break, it begins to erode our faith in democracy and our faith in justice. So we can’t exempt presidents of the United States from obeying the law. Because once we do that, whether it is with President Bush or with a Democrat or whoever it is, then we are down the road to tyranny.
SR: You were on the House Judiciary Committee during the Nixon impeachment hearings. What has happened to respect for the rule of law since then?
EH: Well, that’s a very important question. During the impeachment hearings on President Nixon, and the other proceedings that took place, both in the grand jury, in terms of prosecution of Nixon’s top aids, and indeed naming of President Nixon as an unindicted co-conspirator, as well as the work of the Senate committee, established, I thought, a very clear precedent. That there has to be accountability; that no one is above the law. And that was a precedent, by the way, that the country completely embraced.
You have to remember—many people weren’t alive then who are living now—that President Nixon, a Republican, was elected in one of the biggest landslides in the history of the United States in 1972. About a year later most of the American people were demanding that Congress system take action because it looked as though the president had violated the law. And Congress did. And the American people, most of whom had voted for Nixon, said "Hey, wait a minute—even though we voted for him, [what’s] more important than any president and more important than any party, is our Constitution which has preserved our freedoms and our democracy and the rule of law." And that’s what Americans agreed upon then.
But what’s happened since? Are we playing politics with our Constitution? With the very idea of justice for all—liberty and justice for all—those are very basic words in America. But we are not going to get justice for all if we take a big eraser and say, "Hmm, we erase the criminal laws when it comes to president of the United States and his top aides. They are above the law." That’s what President Nixon said. He said, "It can’t be illegal if I do it. I am the president." Well, we can’t adopt that philosophy.
SR: Why do you think more people don’t want to pursue this now? What’s the resistance?
Holtzman: I am not sure that people don’t want to pursue it. I don’t think the American people know that a case can be made. I don’t think there has been a lot of publicity about the fact that criminal laws may have been violated—or stronger than may have been violated, that criminal laws appear to have been violated. And therefore, they are not saying, "Therefore we need to have a special prosecutor."
Once the American people understand that there is what we call a prima facia case, that the laws appear to be violated, I can’t imagine that most Americans would say, "Well, let’s give any president a break. Whatever the president wants to do with obeying or disobeying the criminal laws, that’s up to him or her—we allow our presidents to do whatever they want." That’s what you have in a military dictatorship. That’s not what you have in America.
Neither the heads of banks nor the president of the United States, or anyone who is high and mighty, and neither anyone who is poor and low, should be exempt from the criminal law. We talk about personal accountability and personal responsibility, and that’s something that we have to uphold, because if we start down that road it is a very dangerous road.
So I can’t tell you how the American people feel, but some of the pundits all supported these activities, they may not want to feel as though someone could be prosecuted for them, because I’m not sure that some of them thought there was anything wrong—they said it was great to torture people; we are all for waterboarding. Well, they are endorsing criminal behavior. I don’t think they want to be put in that position. So, I think it is natural that some of the pundits and some of the press and some of the media people who supported waterboarding don’t want to have it exposed as a crime.
SR: What’s the constitutional risk or peril to not pursuing this now?
EH: If we say that it looks like President Bush has violated criminal laws and we don’t appoint a special prosecutor, then the next president, maybe President Obama, maybe somebody down the road, maybe somebody after him, maybe 10, 20 years from now, may say, "Well, the law says I can’t arrest American citizens on my own say so. Well, President Bush started a war lying to Congress. He violated the law on wiretapping. He tortured whoever whom he wanted to. So why can’t I arrest American citizens on my own say so?" And that’s the problem.
I was a prosecutor. You enforce the criminal laws for two basic reasons. One is to punish people who commit crimes, because society says this conduct is unacceptable; but it also to send a message to would-be criminals in the future. You can’t do it and get away with it. And that’s what’s at stake here. By refusing to investigate, by refusing to hold people accountable, you trivialize the conduct. You say that it is unimportant and insignificant that a president of the United States ignores the criminal law.
So that’s a terrible message about the conduct, and a terrible message about the future, because it is just an incitement and an encouragement to other presidents to say, "I’m above the law. I’m the president. I don’t have to obey it." And that’s why the American Revolution was fought, to say to King George that we don’t want a monarchy in the United States. We want the rule of law. We want a president who is accountable to the rule of law. We could have had a king. Why did we fight the American Revolution? We’re not going back there.
SR: What will readers find in the book?
EH: What readers will find in the book is a very careful and I hope, readable, analysis of what these criminal laws are. It lays it out very clearly. What are the possible that have been broken by the Bush administration and what we can do about it.
It’s a very short book, but it makes you very informed. And then armed with this book, armed with the facts, people can go to their representatives, congresspeople and senators and say "Just as we don’t want to exempt the high and mighty banks, we don’t want to exempt the high and mighty presidents of the United States. We have a rule of law. We have a democracy. And we are not going to accept the idea that the president is a monarch and can do whatever he wants.”
Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).