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UNITED STATES v. GEORGE W. BUSH et al.
Grand Jury Presentation
ASSISTANT UNITED STATES ATTORNEY: Good morning, Ladies and Gentlemen. We're here today in the case of United States v. George W. Bush et al. In addition to President Bush, the defendants are Vice President Richard B. Cheney, former National Security Adviser Condoleezza Rice-who's now the Secretary of State, of course-Secretary of Defense Donald Rumsfeld, and former Secretary of State Colin Powell.
It's a one-count proposed indictment: Conspiracy to Defraud the United States in violation of Title 18, United States Code, Section 371. I'll explain the law that applies to the case this afternoon, but I'm going to hand out the indictment now, so you'll have some context for that explanation. Take as long as you need to read it, and then feel free to take your lunch break, but please leave your copy of the indictment with the foreperson. We'll meet back at one o'clock.
* * *
ASSISTANT U.S. ATTORNEY: All twenty-four of you are back, I see, so we're ready to go. Did everyone have enough time to read the indictment?
GRAND JUROR: We did, but could we get some heat in here? It's freezing.
SECOND GRAND JUROR: No it's not.
GRAND JUROR: Yes it is.
ASSISTANT U.S. ATTORNEY: Well, this does not bode well for your deliberations ... Actually, I think it's chilly too, but for some perverse reason, the General Services Administration decides to turn on the heat only around Memorial Day. Then, around Halloween, they crank up the air conditioning. I'll see what I can do, but GSA is essentially a fourth branch of government ...
Speaking of which-today we're going to discuss the law that applies to U.S. v. Bush et al. As you've just read, the indictment alleges a violation of the federal conspiracy statute, Title 18, United States Code, Section 371. Criminals have the option of violating Section 371 in one of two ways. They may conspire to violate another statute, such as bank robbery or kidnapping, or they may conspire "to defraud the United States, or an agency thereof," which is what's charged in this indictment. To understand conspiracy to defraud the United States, we need to address three main concepts:
1. What is a conspiracy?
2. What does it mean "to defraud the United States"?
3. What is fraud, generally?
What does conspiracy mean in the legal sense? This probably does not come as a surprise, but words do not necessarily have the same meaning in the legal sense that they have in everyday usage. Take the word "conspiracy," for example. Somehow, the word conspiracy has gotten a bad name. Everybody hears it and thinks, oooh, secret handshakes and people in trench coats talking into their sleeves.
GRAND JUROR: Does oooh have a specific legal meaning?
ASSISTANT U.S. ATTORNEY: I'll have to look that up. Anyway, criminal defense attorneys like to capitalize on this common connotation, which is exactly what happened in the recent trial of Enron CEOs Jeffrey Skilling and Ken Lay. Enron, as you know, is the Texas corporation that went belly up in the fall of 2001. Lay-who has now passed away-and Skilling were convicted of conspiracy to commit wire and securities fraud, among other things.
During the trial, the defense attorneys repeatedly referred to the conspiracy charge as the "giant conspiracy" or the "massive criminal conspiracy to cause the collapse of Enron." And, as prosecutor Katherine Ruemmler pointed out, it was always "in this mocking tone like it defies belief that there could have been a conspiracy at Enron." The defense attorneys were doing their jobs, trying to imply that the case was just plain ridiculous, but as they and Ruemmler-and the judge-knew, the term "conspiracy" has an entirely neutral meaning. It simply means "an agreement between two or more persons to join together to accomplish some unlawful purpose."
You don't have to be in a dingy basement or smoky hideaway to devise a conspiracy. On the contrary, most sophisticated conspiracies are planned and carried out by well-dressed executives in well-appointed offices.
Now, you may be wondering what legal rules from the Enron trial have to do with this case. The answer to that question requires a brief-really brief-law-school lesson. One source of criminal law, in addition to the statutes themselves, is what's called case law. Those are the opinions that judges publish on general legal principles and the proper interpretations of statutes in the context of specific court cases. Judges and scholars review this body of law and write pattern jury instructions for courts to use in advising trial juries.
So concepts that apply to one criminal case will apply to another, and it's worked that way for years. That is particularly true for conspiracy law which has been virtually unchanged for about 700 years-since the 1300s in England-and which we imported, along with scones. I might use some examples from the Enron case, but the legal principles I'll be explaining are based on the pattern instructions.
How do you prove a conspiracy? Believe it or not, criminal conspiracies-and many crimes, actually-are almost always proved through circumstantial evidence, which is perfectly acceptable under the law. The term "circumstantial evidence" is the Rodney Dangerfield of legal terms. You often hear people say, oh that's just a circumstantial case, suggesting the evidence is flimsy, but, you may be surprised to hear, that is not at all how the law views direct and circumstantial evidence. On the contrary, juries are specifically instructed that the two are indistinguishable in terms of their importance.
When you know what direct and circumstantial evidence are, I think you'll see why this is true. Direct evidence is proof of a firsthand observation, like seeing, smelling, touching, hearing. For example, if your cousin walks into your house and tells you it's raining, that would be direct evidence that it's raining.
If, on the other hand, your cousin comes running into your house wearing a mud-splattered yellow slicker and galoshes-if anyone even wears galoshes anymore-and drops a dripping umbrella on the floor, from that you could conclude that it's raining outside. That's circumstantial evidence, a chain of facts that indirectly proves another fact.
The truth is, circumstantial evidence is often more reliable and believable than direct evidence. If it's clear and sunny, for example, and your cousin walks in, perfectly dry, and says, "Wow, it's pouring out there," his statement is not going to seem particularly reliable, even though it is direct evidence.
What it comes down to is common sense. And common sense will tell you that, in real life, people don't write out agreements to commit crimes, or say, "Hey, everyone, let's start a conspiracy." That is why another standard jury instruction is that proof of a conspiracy does not require evidence that the defendants explicitly discussed details of the scheme or made some formal agreement.
A similar point is that, in most conspiracy cases-including this one-there is rarely a smoking gun or an insider who can lay out all the evidence. You decide what facts have been proved and then decide what inferences to draw from them. Here is what juries are told about that point: "You are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience." Just like you do, quite naturally, every day.
So, a conspiracy is an agreement. As applied to this case, it would be proved by showing a chain of circumstances-public statements and conduct, versus behind-the-scenes knowledge and discussion-that would lead a reasonable person to conclude that the defendants had, by their actions, demonstrated that they had agreed to defraud the United States.
What does it mean, "to defraud the United States?"
Courts have said that "to defraud the United States" means to use fraud to "interfere with, impair, obstruct or defeat lawful government functions of an agency or branch" of the United States, and of course, Congress's deliberations about war, making appropriations, and oversight of foreign affairs, are "lawful government functions of a branch of the United States." These are the duties and responsibilities assigned to them in Article I of the U.S. Constitution. Keep in mind, however, that the conspiracy to defraud does not have to succeed, so legally it is irrelevant whether any member of Congress was actually deceived. Although I think the evidence will show that they were. The focus is on whether the defendants used fraudulent means interfere with Congress's lawful functions.
Finally, what is fraud?
You know, analyzing a case in light of a statute is like taking apart one of those Russian nesting dolls-
GRAND JUROR: Matryoshka!
ASSISTANT U.S. ATTORNEY: Bless you.
GRAND JUROR: No, that's what they're called: Matryoshka.
ASSISTANT U.S. ATTORNEY: Oh, thanks. I thought you had allergies or something. Anyway, you break the statute down into clauses, then phrases, and then words. After you've taken it apart and know what the parts mean, you put it back together.
In the context of Section 371, the Supreme Court has said that fraud includes deceit, craft, trickery and dishonest means. Let me explain that.
First of all-and I have no idea why I am into Russian references today-
GRAND JUROR: Because it's like Siberia in here.
ASSISTANT U.S. ATTORNEY: I'm so sorry ... Well, remember how the Russian novelist Leo Tolstoy once wrote, "Happy families are all alike"? The same is true of fraud. Regardless of whether you're talking about legitimate activities that become frauds or schemes that start out that way-like lottery scams-fraud cases are all alike. Things people can defraud others about are unlimited, but the techniques people use to defraud are remarkably consistent.
Now, remember that we're talking about fraud, not lying. You may have heard the comment, To say that President Bush lied about prewar intelligence is a lie. You'll have a chance to evaluate that, but whether Bush et al. committed a crime in misrepresenting the prewar intelligence on Iraq is not a question of lying; it's a question of whether they committed fraud.
Fraud includes lying, but it's much more than lying. And a "scheme to defraud" is any plan or course of action that's intended to deceive another through false pretenses, representations, or promises.
Legally, a lie is by definition intentional: It's a statement made with knowledge that it's untrue and with intent to deceive. On that issue, a key point to be aware of is the concept of notice. Continuing to assert something as true, even after receiving notice that would cause a reasonable person to inquire further about whether his statement is in fact true, is the same as knowingly and intentionally making a false statement. The law provides that once a person has reason to doubt the accuracy or veracity of what he's saying, he can't just stick his head in the sand and later claim he made a good faith mistake.
GRAND JUROR: I don't get it.
ASSISTANT U.S. ATTORNEY: Well, for example, in the Enron case, the evidence showed that numerous people, including Sherron Watkins, a company accountant, warned Ken Lay that the company's accounting practices were suspicious. So he was on notice. Therefore, when he continued to say, as a matter of certainty, that Enron's financial condition was hunky-dory, he was knowingly making a false representation, especially when he had access to any company information he wanted to see.
You may find the same willful blindness in this case. For example, the evidence will show, I believe, that White House officials had notice, particularly from Energy Department experts, that should have led them to question, to say the least, their many assertions that Iraq was buying aluminum tubes for use in nuclear centrifuges. Therefore, they had a legal duty to inquire further. Politicians may be able to effectively use "plausible deniability" as a defense, but criminal defendants can not.
Okay. Where were we? Lying and fraud. The two terms are not legally synonymous. There is a good reason for this, which we know from daily life. Just about everyone, at one point or another, has been snookered.
GRAND JUROR: Snockered?
ASSISTANT U.S. ATTORNEY: Not snockered-snookered-you know, tricked, by a salesperson or an advertisement. But rarely because of an outright lie. Outright lies are a lousy way to deceive people.
For example: Say-it's farfetched, I know-but say that, as a teenager, you went drinking in the woods with your friends after work one night. The next day your mother asks you where you were the night before. If you're normal, you do not say, "I was out drinking." But if you're smart, you don't tell an outright lie, such as "I was at Fred's house all night." Why? Because it's way too easy to disprove.
More likely, you tell a half-truth, like "Oh, I was just hanging out with Fred or Sally," conveniently skipping the in the woods drinking part. Your mother's ability to figure that part out would depend on her cross-examination skills.
The law of fraud is premised on a societal determination that we should not have to cross-examine those who make representations to the public intending to influence our important decisions. That is especially true with government officials, not only because they hold positions of public trust, but also because the average citizen has few, if any, ways to question their claims.
The bottom line is that proof of fraud does not require evidence of outright lies. Lies are simply a subset of fraud. A good way to think about it is this:
[Whereupon the Assistant U.S. Attorney draws a large circle on the board]
Remember Venn diagrams? In this rudimentary-
GRAND JUROR: I'll say.
ASSISTANT U.S. ATTORNEY: Well, that's very hurtful ... But you do recognize this as a large circle, I hope. This represents "Fraud." And inside we'll put smaller circles: "False Pretenses," "False Representations," "Outright Lies," "Half-truths," "Deliberate Concealment of Important Information," "Misleading Representations," "Statements Made with Reckless Indifference to Their Truth."
There are two things you'll notice about this diagram. The first is that the circles overlap. Not because I can't draw-although I can't-but because the types of fraud do, in fact, overlap. Almost any half-truth involves deliberate concealment, for example.
But you don't have to categorize the statements because, as you see from this important diagram, "fraud" defines a set of conduct that is larger than its individual parts. Also, fraud is a course of conduct-a constellation of false statements and deceptive acts that span months, even years. That's why you have to look at the evidence as a whole.
Nevertheless, it's still useful to use our matryoshka approach and look at how courts define and describe the different techniques of fraud. So here goes:
First, False Pretenses. One traditional instruction on fraud says that a scheme to defraud "need not misrepresent any fact." All that's required is that the scheme be "reasonably calculated to deceive persons of ordinary prudence and comprehension." You can defraud people without making any direct assertions at all.
How would someone do that? By arranging a situation to give a false impression. Example: My son's 1994 Honda Civic has a big dent on the side. Occasionally, someone will knock on the door and ask if we want it fixed. We always say, "No." But assume we say, "Sure, how much?" The guy says, "$500.00-half now and half later." So we give him $250 and he takes off, never to return.
Now that's fraud, but he hasn't asserted anything. He gave the impression that he would fix the dent-you could say he made implied assertions-but he never actually said it.
More often, false pretenses are like the background music, the ambiance. People who sell bogus investments, for example, will rent a fancy office, a Jaguar, buy their victims tennis bracelets, and take them to posh restaurants. Essentially, they portray themselves as wealthy because that lends credibility to their extravagant promises about the vast potential return on the investments they're selling. Unfortunately, however, these con artists are usually spending the unsuspecting targets' own money to dazzle them. After luring their marks in with false promises, the fraudster will seal the deal by creating a false sense of urgency: "Limited-time offer! Only three more hours!"
You're going to hear about the Bush administration's concerted efforts to set up such a false pretense regarding the alleged threat from Iraq. They created a heightened atmosphere of fear and then-like so many other criminal fraud defendants-sealed the deal by claiming it was a limited- time offer: time is not on our side.
Next we have False Representations-But let's take a break first. Fifteen minutes?
Excerpted from UNITED STATES v. GEORGE W. BUSH et al. by Elizabeth de la Vega Copyright © 2006 by Elizabeth de la Vega. Excerpted by permission.
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Posted December 18, 2008
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