Do the Presidential Candidates Believe that Presidents Are Above the Law?

By Francis T. Mandanici

Regarding whether President Bush and officials in his Administration committed any crimes, Senator Barack Obama told Will Bunch of the Philadelphia Daily News that he would have his new “Attorney General immediately review the information that’s already there” and if that information showed that “crimes have been committed, they should be investigated” because nobody is “above the law.” Bunch in his article stated that many Americans wondered whether an Obama Administration would seek to prosecute Bush officials for crimes that they may have committed. Senator Obama stated that at the present time “I can’t prejudge [whether Bush officials committed any crimes] because we don’t have access to all the material right now.” The other presidential candidates would probably say the same thing.

However, the public record already has sufficient information that shows that President Bush and his officials committed various crimes and the presidential candidates can make judgments on these matters now.

For example, concerning some of the most well known acts of President Bush and his officials - their claims that Iraq had sought uranium for a nuclear weapon - there already is abundant information in the public record that shows that their uranium claims were false and fraudulent. A review of the law and that current information in the public record clearly shows that their uranium claims violated the criminal statute 18 U.S.C. § 1001 that prohibits making false and fraudulent statements to Congress, and or violated the criminal statute 18 U.S.C. § 371 that prohibits obstructing Congress’ functions.

In March I sent to Attorney General Michael Mukasey a request for and report in support of the Justice Department’s appointment of an outside Special Counsel to investigate the Administration’s uranium claims. That report is 109 pages long, has over 400 footnotes, has 50 pages covering facts in the public record, and has 30 pages of legal analysis.

As noted in the report, President Bush and his officials made most of their uranium claims in January 2003 after UN weapons inspectors after two months of inspections in Iraq had found no weapons of mass destruction. Despite the fact that intelligence officials had issued numerous warnings to the White House discrediting the claim that Iraq had sought uranium, President Bush and his officials still publicly made those claims in an effort to weaken the Congressional movement that sought to delay the start of the war to allow the UN weapons inspectors the time to finish their inspections.

On March 7, 2003, the UN’s chief nuclear weapons inspector publicly declared that the documents behind the Administration’s uranium claims were “not authentic” and also declared that the UN inspectors after three months of inspections had found no evidence of a nuclear weapons programme in Iraq. Rather than allow Congress the time to absorb those facts and to consider repealing the October 2002 Congressional war resolution because the UN inspections had now shown that Iraq was not an imminent threat, President Bush rushed the nation to war twelve days later on March 19. As Bob Woodward noted in his book Plan of Attack, a few days prior to starting the war President Bush actually stated at a meeting that he would start the war in a matter of days not weeks because any further delay in starting the war would allow public opinion against the war to build.

In July 2003 after being accused of taking the nation to war under false pretenses, the Administration repeated its already thoroughly discredited uranium claims when Vice President Cheney instructed his Chief of Staff Scooter Libby to tell the press that an intelligence document had stated that Iraq had vigorously tried to procure uranium. Among other things, they did not tell the press that the organization that issued that document in October 2002 a few months later in January 2003 sent a memo to the White House stating that the uranium claim was baseless.

In 2004 American weapons inspectors in an official report stated that Iraq had no nuclear weapons and that there was no evidence that Iraq had sought uranium for such weapons.

My report requesting the appointment of an outside Special Counsel provides a lengthy legal analysis showing that the Administration’s uranium claims violated the above criminal statutes.

Furthermore as noted in my report (pp. 60-63, 91), the refusal of the Justice Department to appoint a Special Counsel would actually provide further grounds for the application of the doctrines of equitable tolling and equitable estoppel, which are legal doctrines that toll or suspend the statute of limitations for various reasons. Based on the fact that President Bush’s political appointees at the Justice Department have always protected him from prosecution and continue to do so, these legal doctrines would become applicable and would prevent President Bush from successfully raising the five-year statute of limitations if charges are brought against him after he leaves office and his political appointees no longer control the Justice Department.

It would not be an academic exercise for Senator Obama, Senator Hillary Clinton, Senator John McCain or any other public figure to now review the information in the public record concerning the Administration’s uranium claims, and to offer their judgment regarding whether there is enough information to warrant a criminal investigation. If such prominent public figures reviewed the public record and made a public request for a Special Counsel to investigate the matter, and if the Bush Justice Department refused that request, then that refusal shielding President Bush from prosecution would provide an even greater record that showed that the statute of limitations should be considered tolled or suspended regarding any later charges brought against President Bush concerning crimes that he committed while he was in office.

To thoroughly evaluate the presidential candidates the American voters need to know whether such candidates believe that Presidents are above the law. The voters and the media should push the candidates to review the current record and to express their judgments (or give some straight talk) on whether that record is strong enough to warrant a criminal investigation of President Bush and to require the Bush Justice Department to appoint an outside Special Counsel. A candidate who states that the Justice Department should appoint an outside Special Counsel should also state that if the current Justice Department refuses to do so then that candidate pursuant to Justice Department regulation 28 C.F.R. § 600.2 will publicly bring the matter to “the attention of the Attorney General” in their Administration and request that such an appointment be made.

If any presidential candidate refuses to review the current record and to express their views on whether President Bush should be investigated, then that would strongly suggest that such a presidential candidate does not want to change and in fact aspires to the imperial presidency that President Bush has built high on a hill where Presidents are above the law.

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The author is a lawyer in Connecticut. From 1968 to 1970 he was a Peace Corps volunteer in northeast Thailand.