Research Report on Criminal Prosecution in California Courts of Former President George Bush for Conspiracy to Commit Murder and Murder

111 Pages Posted: 9 Jan 2012 Last revised: 5 Mar 2013

See all articles by Benjamin Davis

Benjamin Davis

University of Toledo College of Law

Date Written: July 25, 2011

Abstract

With the end of the War in Iraq announced by sitting President Barack Obama in 2011, another opportunity arises for accountability for instigating that war.

An unexplored avenue for accountability for a former American President in the American structure is the state criminal prosecution. This alternative path conducted in appropriate circumstances appears to be foreseen in our constitutional structure. This alternative path is a means for assuring the double protection of the rights of the People as was envisioned by Alexander Hamilton and James Madison.

Originally prepared at the invitation of Vincent Bugliosi, this research report explores the opportunities and hurdles for a state (as opposed to federal) criminal prosecution of former President George W. Bush for ordinary state crimes of conspiracy to commit murder and murder for the deaths of American soldiers in the War in Iraq.

This research report examines the dual nature of a former President defendant, federalism tensions, separation of powers tensions, state criminal jurisdiction for these crimes, federal officer removal, habeas and other possible interventions in state and federal courts, likely defenses such as federal exclusive domain, federal preemption, state secrets privilege (national security), executive privilege, supremacy clause immunity, qualified immunity, the political question doctrine, the act of state doctrine, self-defense or necessity defenses, sitting President or governor interventions, the innocent agent doctrine, limitations on Presidential War Power including whether there is a possibility of taking the country to war under false pretenses, Curtiss-Wright and the Youngstown trilogy and the United States international law obligations.

The research report concludes that, while recognizing the difficulties, such a state criminal prosecution can be done and, as a normative matter with regard to the deaths of American soldiers in the War in Iraq, should be done.

The hope is that the research report can serve as a template. The report fleshes out an expressive domestic alternative path to accountability for high-level federal officials that complements federal criminal prosecution, impeachment for political liability, electoral accountability for political liability in our domestic structure, as well as foreign or international tribunal criminal prosecution.

Keywords: former President, constitution, federalism, separation of powers, state criminal jurisdiction, federal officer removal, habeas, courts, federal exclusive domain, preemption, state secrets, national security, executive privilege, immunity, political question, innocent agent, international law

Suggested Citation

Davis, Benjamin, Research Report on Criminal Prosecution in California Courts of Former President George Bush for Conspiracy to Commit Murder and Murder (July 25, 2011). University of Toledo Legal Studies Research Paper No. 2012-12, Available at SSRN: https://ssrn.com/abstract=1981275 or http://dx.doi.org/10.2139/ssrn.1981275

Benjamin Davis (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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