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He Still Dares Call It Treason
Monica Friedlander

"What happened here is not the sunlight of democracy, but the dark and ominous shadows of totalitarianism." -- Vincent Bugliosi

What unfolded on August 2 under the elegant, gilded dome of the landmark historic Grand Lake Theater in Oakland, California was one of the harshest, no-holds-barred indictments of the U.S. Supreme Court ever made. Famed prosecutor and writer Vincent Bugliosi blasted the Bush v Gore ruling, calling it the "worst crime in U.S. history" - in effect, the "theft of the Presidency."

The talk was part of promotional tour for his book, "The Betrayal of America," in which he charges that (in)Justices Rehnquist, Scalia, Thomas, O'Connor, and Kennedy betrayed everything they ever believed in to take the election away from the American people and into their own hands based on an inapplicable constitutional principle.

"I will stake my prosecutorial reputation on the fact that within the pages of this book I prove beyond reasonable doubt that these five Justices deliberately set out to hand the election to George Bush," Bugliosi says. "The evidence against them is absolutely overwhelming. Like typical criminals on the run, they left their dirty fingerprints everywhere."

These formidable charges -- involving a ruling that changed the course of history, made by a nationally respected prosecutor, and in front of a full and vociferous house -- unfolded with virtually no media coverage. This "omission" is in keeping with the media's "move-on-the-election-is-over" mentality, which Bugliosi likened to "Nazi war criminals saying 'the war is over. Let's get on with our lives.'"

Bugliosi announced during the talk that Congressman John Conyers of Michigan asked that "None Dare Call It Treason" -- the article on which Betrayal of America was based -- be entered into the Congressional record, thus bringing the charges against "the felonious five," as Bugliosi calls them, into the permanent annals of Congress.

Bugliosi praised those in the audience who by supporting his cause are finding themselves "in the front lines, in the trenches," fighting "a noble war" -- and added, "I salute you for it."

He also asked the audience to help get his message out. He said that in his long and successful career he never had so much trouble getting invited to speak on the air as he does now, even though his book has been on the New York Times bestseller list for weeks.

The stage for Bugliosi's talk was set by a few other speakers, who largely reinforced his message while adding their own take and call to action.

Medea Benjamin of Global Exchange discussed her role as observer of the vote recount in Florida last December. She described shocking accounts of delaying tactics used by the Republicans to run out the clock on Al Gore, and cases of African American voters turned away from the polls because they could not produce two pieces of identification.

Another powerful plea was made by Riva Enteen, vice president of the National Lawyers Guild (NLG), which is considering using Bugliosi's book as a legal foundation for asking the House to initiate impeachment proceedings against the Supreme Court Justices. Enteen said that the NLG has been receiving some 100 responses a day since their call for support went out, including an inquiry from the AFL-CIO.

"What has changed in the last couple of months is not whether there will be an impeachment campaign," she said. "There IS an impeachment campaigning going on. It is only the role that the National Lawyers Guild will play in it."

She asked everyone to join her and the NLG in going after "these five despicable traitors."

Bugliosi followed, and like the passionate, skilled and persuasive prosecutor that he is, laid out his convincing case: that the Bush v. Gore ruling was not based on the law -- meaning that the court knowingly and deliberately nullified the votes of 51 million and stole the election for George Bush.

He concluded "nothing could possibly be more serious in its enormous ramifications. It was the biggest and most serious crime in American history. And in a fair and just world, the five Justices responsible for that decision belong behind prison bars."

Bugliosi made his case point by point as if his audience was a jury.

1. The Justices in effect confessed to the crime, he said, by stating in the decision that the ruling only pertains to Bush v. Gore, not to other cases. "This is the first time in the 210-year history of the court that the court limited its ruling to the case before it," Bugliosi said. "If that ruling was based on the law, there's no way under the moon why they would have said it does not apply to other cases."

He quoted Scalia writing in 1996 that "the Supreme Court of the United States does not sit to announce unique dispositions. Its principal function is to establish legal precedent, to set forth principles of law that every court in America must follow."

"But not apparently in Bush v. Gore," Bugliosi said, "the only exception in the 210 year history of the court."

2. A couple of days before its infamous ruling, the court in effect handed the election to Bush when they stopped the manual recount ordered by the Florida Supreme Court of some 60,000 undervotes. Bush's lead had shrunk to 154 votes when Justice Scalia intervened with an emergency order claiming that the count could cause "irreparable harm" to George Bush.

Said Bugliosi, "So even though the election is not yet decided, the incredible Scalia presupposes Bush won the election, and indeed has a right to win it, and any recount that shows Gore had won threatens irreparable harm to George Bush! Now if this doesn't show these five Justices were deliberately trying to steal the election for George Bush, what in the world would?"

And what empirical evidence, Bugliosi asked, could indicate that different counting standards in Florida would hurt Bush more than Gore?

"The highest court in the land told 60,000 Americas "We're going to protect your right to vote by not counting any of your votes."

3. Bugliosi made the case that the equal protection clause -- the basis for the court ruling -- is inconsistent with the Justices' own judicial philosophy going back to 1945. The court, he said, has always held that there is no equal protection violation unless the discrimination is intentional, something no one claimed in this case.

Bugliosi cited not only past cases, but also a case decided four months AFTER the election, in which "Scalia suddenly remembered after deliberate amnesia what the long-standing position of the court was in equal protection cases. And in the civil rights case of Alexander v. Sandoval there was no intentional discrimination and therefore no equal protection violation.

4. These five Justices, Bugliosi reminded the crowd, are all ardent Federalists who swear by the principle that state courts interpret state law -- yet they intervened in this case.

5. These Justices believe in judicial restraint, he continued, constantly arguing against judicial activism. "What could possibly qualify as judicial activism more than telling the American people: "You're not going to pick the president, we are!" Bugliosi asked.

"The fact that these five Justices have completely departed from what they would have almost reflectively and automatically done in 99 out of 100 cases is further evidence of their criminal state of mind."

6. The ruling stopping the vote count was issued in the form of a per curium opinion, which Bugliosi said, is almost always used in cases that are uncontroversial. Moreover, these opinions are unsigned and anonymously written.

"It's remarkable that arguably the most consequential and far-reaching decision that the decision the Supreme Court has handed down since February 1, 1790 -- which will undoubtedly alter the course of American and therefore world history -- was unsigned and anonymously written," Bugliosi said.

All of these points, he concluded, prove that these five Justices have committed a judicial coup d'etat and "the unpardonable sin of being knowing surrogates for the Republican Party instead of being impartial arbiters of the law."

For that, he wants history to remember them as criminals of the very highest order.

"Most importantly," he said, "by exposing this terrible, terrible crime, I want to help insure that something like this will never, ever again happen in America."

Bugliosi also endorsed all movements to impeach the Justices, even while admitting that such an outcome is politically unrealistic. But, he said, "any consideration given by Congress to the impeachment movement would have enormous sociological significance."

Finally, he went on to arm those trying to impeach the "felonious five" with two critically important pieces of legal ammunition.

First he discussed motives and conflicts of interest. For instance, he cited the Wall Street Journal and Newsweek as describing how upset Justice O'Connor was at the possibility of a Gore win because she planned to retire and did not want a Democrat appointing her successor. Clarence Thomas' wife works for the conservative Heritage Foundation, which assisted Bush in his transition to power. And two of Scalia's sons work for law firms heavily involved in the Bush campaign.

Bugliosi then skillfully armed those fighting "the holy war" with arguments against the widespread claim that the Florida Supreme Court was trying to do for Al Gore what the U.S. Supreme Court did for George Bush.

Not only was the Florida decision a standard interpretation of Florida statutory law, Bugliosi said, but also by virtue of their rulings, the Florida Supreme Court proved its impartiality. Two of the four rulings they handed in matters related to this election were anti-Gore. (In one, Gore asked the Florida Supreme Court to order that the vote count be resumed in Miami Dade after Republican mobs brought it to a halt; the court refused. In the other case, citizens asked for a revote because of the presumably illegal Butterfly Ballot, a petition the court denied.)

Most importantly, Bugliosi argued, there's an enormous difference between the two courts. "The Florida Supreme Court said 'count all votes.' The U.S. Supreme Court said, "Don't count votes.'"

Bugliosi concluded the night by asking that Americans not let the five InJustices get away with their action:

"We already know the moral bankruptcy and deficiency of character of these five Justices. But if we Americans allow this [to happen] without demonstrating our absolute outrage, what does it say about our character?"