UFPPC (www.ufppc.org) Digging Deeper LXI: November 10, 2008, 7:00 p.m.

Vincent Bugliosi, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (New York: Thunder’s Mouth Press/Nation Books, 2001).

PART ONE

Preface by the Editors of The Nation. Bugliosi’s Feb. 1, 2001 article “None Dare Call It Treason” drew a huge response from readers of The Nation (3-4). In this book are, additionally, “a lengthy introduction, support material, amplifications, endnotes” referring to relevant Supreme Court opinions and documents (5).

Foreword by Molly Ivins. Bugliosi’s text is “the modern equivalent of ‘J’Accuse’” (7). Chads (7-8). There was nothing really new in this drama except what the Supreme Court did (9).

Foreword by Gerry Spence. “The practice of law is the practice of a religion” and there is a vow of silence about criticizing judges (11). Bugliosi’s text is “an apostasy that steals the breath” (12).

Introduction by Vincent Bugliosi. The ultimate recount of the vote is “irrelevant” (15-17). Bugliosi is disturbed that no conservative friend of his who read the article is angry about what the Supreme Court did, showing that “the far right unquestionably is more mean-spirited” (20; 17-21). To prove his bona fides, Bugliosi notes that he was against Nixon, but also against Nixon’s impeachment (21-22). The Nation article deals only with the Supreme Court decision (22-23). Contrary to popular opinion, judges are highly political, including Supreme Court justices (23-28). The reason the justices were capable of this: all human beings are sensitive to “self-interest” (28-29 & 32-39).

None Dare Call It Treason. [Published in The Nation on Feb. 1, 2001.] The Court’s sin was “being a knowing surrogate of the Republican Party instead of being an impartial arbiter of the law” (41). The equal protection argument does not hold water (42-45). The Court’s ruling was not supported by the cases it cited (45-46). Any subsequent knowledge provided by a recount is irrelevant to the justices’ culpability (46). Reaction has been too tepid—these are “criminals in the very truest sense of the word,” not technically, for there is no law they have actually violated, but in terms of “natural law and justice” (48, 49; 46-50). That it is inconceivable that these justices would have so acted had Gore rather than Bush been the plaintiff “proves, on its face, that the five conservative Republican Justices were up to no good” (50). What they did speaks for itself: 1. That counting the votes to determine who won the election constituted “irreparable harm” justifying a stay is untenable, as John Paul Stevens said in dissent (50-53). 2. The decision was issued per curiam, indicating that no justice wanted to sign it; who wrote it is unknown, “though it is believed to be O’Connor and/or Kennedy” (53; 53-54). 3. On Nov. 24, the Court denied review on equal-protection grounds, which was the third objection proposed (54-55). 4. The Court needlessly treated Dec. 12 as a definitive deadline, when it was nothing of the kind; moreover, the recounts would probably have been finished in time, had the Court not issued a stay (55-58). 5. The conservative justices ignored their supposed belief in states’ rights (58). 6. The assertion that the decision had no value as precedent because it was

“limited to the present circumstances” flies in the face of the very nature of appellate court decisions and by itself “shows unequivocally that the Court knew its decision was not based on the merits or the law, and was solely a decision to appoint George Bush president” (59). The view that we must respect the Court in order to uphold the rule of law “is just so much drivel” (60). Bugliosi wrote the article because “I want these five Justices to know that this is America, not a banana republic, and in the United States of America, you simply cannot get away with things like this” (61). The Court’s reputation is stained “for years to come, perhaps decades” (61). Can the U.S. be a great nation if this is not rectified?—but Bugliosi admits he does “not know how this can be done” (62).

Amplifications. 1. The justices violated their oath of office (63-64). 2. Erwin Chemerinsky of Harvard believes Bush lacked standing to sue in Bush v. Gore (65-66). 3. Punch cards produced 3.92% nonvotes in Florida, optical scans 1.43% (67). 4. Gore’s brief and David Boies’s argument failed to make good arguments on equal protection issues—it was “appalling,” not citing cases and not raising a variety of points, such as the fact that the Court had always ruled that equal protection rulings must find “purposeful” discrimination; Laurence Tribe and David Boies performed poorly (68-73). 5. The Court’s citation of earlier opinions was deliberately misleading (74). 6. Court decisions are often called “political,” meaning “ideological,” but this one was really political (75-76). 7. The justices were not guilty of theft because no personal property was involved; but Justice Rehnquist did commit the crime of perjury in maintaining under oath that a memo he wrote arguing that Plessy v. Ferguson should be “reaffirmed” was really written for Justice Robert Jackson at his request—defaming Jackson as well (77-

86). 8. Evidence that Justice O’Connor wanted to retire is not that important (87-89). 9. Bush signed into law in 1997 a Texas law preferring manual recounts to machine recounts (90-91). 10. The 11th Circuit in Atlanta, with a majority of judges appointed by Republican presidents, voted 8-4 against granting a recount-stopping stay hours before the Supreme Court acted (92). 11. Scalia’s imputation of illegality to some ballots was a necessary but absurd part of the argument in Bush v. Gore (93). 12. On Jan. 13, 2001, more than 500 law professors denounced the political nature of the stay in a full-page ad in the New York Times (94). 13. Linda Greenhouse of the New York Times published an article on Feb. 20, 2001, alleging that the Court denied the equal-protection argument on Nov. 24 because it was pending in another case, but this does not stand up to scrutiny (95-97). 14. The Supreme Court also acted wrongly, for political reasons, in the Paula Jones case, about which Bugliosi wrote in No Island (98-108). 15. The decision was 5-4, not 7-2 (109). 16. The recount could have continued up to Jan. 6 (109). 17. The treatment of deadlines as sacrosanct was ludicrous, “criminal” (110-12). 18. Chemerinsky says Bush v. Gore is the only case in history limited to the present circumstances (113). 19. G.H.W. Bush was one of the most-qualified presidents in history (114). 20. Treason is defined in the Constitution too narrowly to apply to this case (115-16).

PART THREE

Summary: A Brief History of the Legal Proceedings Leading Up to the December 12, 2000, Ruling of the U.S. Supreme Court in Bush v. Gore. The early recount battle (119-23). The Florida Supreme Court’s decision to continue recounts defended (123-28). On Nov. 22, recounting in Miami-Dade County stopped by a mob (129-30).

Republican petition to the Supreme Court on Nov. 22, granted Nov. 24 (130-35). On Nov. 26, Florida Secretary of State Katherine Harris certified the vote and Florida’s electoral votes (135-39). Gore contested the certification; “painfully incompetent” Judge N. Sanders Sauls ruled against him (139-43). The Florida Supreme Court reversed the ruling (143-45). There is no evidence the Florida Supreme Court tried to steal the election, while there is evidence the U.S. Supreme Court cast about for other arguments to steal the election (146-50). How the five justices may have agreed to use the equal-protection argument (150-53).

Notes. 1. There is no evidence the recounts were being improperly conducted (155-56). 2. The argument that the Supreme Court had to act to avoid a “constitutional crisis” is without merit (156-62). 3. A Bush witness, John Ahman, admitted the Votomatic system

could become clogged with chads (162-63). Boies failed to help Judge Sauls understand the law (163-64).

Biography. Legal and authorial accomplishments; Bugliosi has also produced an album, Greatest Latin Love Songs of the Century. [Further information about the author. Bugliosi has claimed to have achieved 105 felony convictions in 106 trials and, as author, three #1 bestselling true crime books. Bugliosi is 74, works all the time, has been married more than 50 years, and says he is not “particularly bright.” He was born on Aug. 18, 1934, in Hibbing, MN. He graduated from the University of Miami and was president of his graduating law school class in 1964 at UCLA. He and his wife Gail have two children Wendy and Vince Jr. He is agnostic. He was L.A. County asst. district attorney, then lost a race to be L.A. County district attorney in 1972.]