Goodling To Take the Fifth:
The Associated Press reports:
UPDATE: According to the first page of the letter Goodling's counsel sent to the Senate, the rationale for taking the Fifth seems to be that Congress isn't being very open-minded and Democrats don't trust the Bush Administration. That's a new one; I don't think I've ever come across that one before. (Maybe there is more on the other pages of the letter not yet available?)
ANOTHER UPDATE: A few courts have discussed the theoretical possibility that there is some kind of "perjury trap" defense that might apply when a witness is hauled before a tribunal just to see if the witness can be tricked into comitting perjury. Courts have hinted that setting such a perjury trap might violate the Due Process clause. However, I don't think any court has ever actually found a perjury trap; courts invariably find a government interest that allows the testimony, and generally do not need to reach whether such a defense exists. See, e.g., Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir. 1994). Perhaps that's what Goodling's lawyer has in mind?
YET ANOTHER UPDATE: The link to the letter now includes the entire letter, which in turn relies heavily on Ohio v Reiner. I don't see how Reiner is helpful. That case just says that a person can both claim that they are innocent of any offense and yet also claim the Fifth Amendment privilege. Well of course; a person can say whataver they want about their culpability without changing whether they have a privilege. But the Fifth Amendment issue is whether a person has substantial reason to fear that their truthful testimony will help lead to them being prosecuted. Goodling's letter doesn't give a legally valid reason for that fear, at least as far as I can tell.
On the other hand, this may just be a way of slowing Congress down. I gather that Congress's main option would be to seek contempt sanctions:
Monica Goodling, a senior Justice Department official involved in the firings of federal prosecutors, will refuse to answer questions at upcoming Senate hearings, citing Fifth Amendment protection against self-incrimination, her lawyer said Monday.I'm not sure I follow the rationale here. The Fifth Amendment privilege is available if the witness has reasonable ground to believe that her testimony will be used against her to prove an element of a crime. Brown v. Walker, 161 U.S. 591, 598 (1896). What crime might Goodling have committed? I'm also puzzled by the comparison to the Libby case. Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity. Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that's not a valid basis for the privilege. See, e.g,, United States v. Seewald, 450 F.2d 1159 (2d Cir. 1971). Or perhaps she is taking the Fifth because she lied before, and her testifying truthfully this time will reveal her earlier lies?
"The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real," said the lawyer, John Dowd.
"One need look no further than the recent circumstances and proceedings involving Lewis Libby," he said, a reference to the recent conviction of Vice President Dick Cheney's former chief of staff in the CIA leak case.
UPDATE: According to the first page of the letter Goodling's counsel sent to the Senate, the rationale for taking the Fifth seems to be that Congress isn't being very open-minded and Democrats don't trust the Bush Administration. That's a new one; I don't think I've ever come across that one before. (Maybe there is more on the other pages of the letter not yet available?)
ANOTHER UPDATE: A few courts have discussed the theoretical possibility that there is some kind of "perjury trap" defense that might apply when a witness is hauled before a tribunal just to see if the witness can be tricked into comitting perjury. Courts have hinted that setting such a perjury trap might violate the Due Process clause. However, I don't think any court has ever actually found a perjury trap; courts invariably find a government interest that allows the testimony, and generally do not need to reach whether such a defense exists. See, e.g., Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir. 1994). Perhaps that's what Goodling's lawyer has in mind?
YET ANOTHER UPDATE: The link to the letter now includes the entire letter, which in turn relies heavily on Ohio v Reiner. I don't see how Reiner is helpful. That case just says that a person can both claim that they are innocent of any offense and yet also claim the Fifth Amendment privilege. Well of course; a person can say whataver they want about their culpability without changing whether they have a privilege. But the Fifth Amendment issue is whether a person has substantial reason to fear that their truthful testimony will help lead to them being prosecuted. Goodling's letter doesn't give a legally valid reason for that fear, at least as far as I can tell.
On the other hand, this may just be a way of slowing Congress down. I gather that Congress's main option would be to seek contempt sanctions:
Section 192 of Title 2 of the United States Code provides that a subpoenaed witness who refuses "to produce papers upon any matter under inquiry before either House ... or any committee of either House of Congress", shall be guilty of a misdemeanor "punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." Once an individual has been found in contempt by either House of Congress, a contempt order is presented to the President of the Senate or the Speaker of the House of Representatives for certification. 2 U.S.C. § 194. The President or Speaker in turn delivers the contempt citation to the appropriate United States Attorney. The United States Attorney is then required to bring the matter before the grand jury. Id.United States v. House of Representatives, 556 F.Supp. 150, 152 (D.D.C. 1983).
Related Posts (on one page):
- More on Goodling and the Fifth Amendment Privilege:
- Goodling's Basis for Taking the Fifth:
- Goodling To Take the Fifth:
--G
The Fifth Amendment may not cover this, but her motives are not particularly mysterious.
Of course, in the case of lower-ranking officials, the committees will probably be very understanding and agree not to demand a special counsel -- provided the witness "names higher-ups," as we used to say back in Watergate days.
Prosecutors should, but appear not to, understand this.
There's also no "I don't like this particular Congress" ground for refusing to comply with a subpoena. The complaints that TLove and Wagner, regardless of their merits, have political, not legal, solutions.
From http://www.tpmmuckraker.com/
The legal test is whether the testimony would "tend" to incriminate you, by furnishing a link in the chain.
A link can be present even if it wouldn't ultimately lead to proof of guilt.
Plenty of courts have so held. Certainly, they've so held in my home state.
Prof. Kerr, to plead the Fifth, does one have to point out the crime that one is afraid her testimony will be used to convict her of?
Some arguments have been made that DOJ conduct in Attorneygate might've violated some rather broad obstruction-of-justice statutes -- interference in ongoing investigations. Goodling might be afraid of being tagged for such a violation.
Or, her letter might REALLY be a come-hither, grant-me-immunity-and-I-will-tell-you-all kind of move?
The price of ciminalizing political differences, and in particular of prosecutorial mis-use of 18 U.S.C. 1001, is to deter federal officials from speaking on the record, whether under oath or not, to federal law enforcement officers or Congress on potentially touchy subjects.
What does surprise me is that no one has picked up on the implied slam at the Bush administration here - the absence of loyalty down has produced the absence of loyalty up.
President Bush throws underlings to the sharks, so one of them right here is showing how they can take him with them.
IMO this is evidence of an impending implosion by the Bush administration. His own appointees are refusing to take a dive for him because they know he won't protect them from mutual enemies.
His chickens are coming home to roost.
President Bush has shown that he lacks the energy of even an incompetent Executive. Now we see the consequences of managerial skill rivalling that of Al Gore and John Kerry.
It is fun to speculate on how Bush can stop the bleeding from this self-inflicted wound. How about a round of pardons?
Well, at least for one of their own....
If she is psychic (like the cops in that movie where they see the crimes before they happen) and had a premonition that she would perjure herself at the hearing, would she be entitled to some form of a preventive 5th amendment defense? I know I am stretching here, but that is no worse an explanation than any other that has come out of the Justice Department over the last few weeks.
Reading on to page 3, it appears that a more likely reading of Dowd's argument is that Goodling is prepared to reiterate previous testimony that has been denounced as false, and does not want to be prosecuted for that. She lacks any Fifth Amendment right, and such a right would be difficult to specify without destroying the subpoena power outright.
Of course, Dowd could simply be lying. Goodling's affidavit is not at all irreconcilable with a Fifth Amendment pleading based on a charge of inducing or suborning (previous) perjury. Dowd's non-binding (though perhaps unethical under this hypothetical?) "argument" that precedes the affidavit could simply be a distraction to avoid fueling Congress's interest in the crime Goodling actually did commit.
She could very possibly be stating that if she opens her mouth under oath, Congress will dream up some crime with which to charge her. Sure, that's a 'political' problem, subject to political solutions. And somewhere down the road, five or thirty years later, Ms Goodling might find herself vindicated.
That, of course, comes after doing time and spending a mighty sum in lawyers' fees.
I'd sure plead the Fifth in her case. Whether or not she needs to be guilty of a crime to make such a pleading is a point that only lawyers would appreciate. To the public, she's shielding herself. And were Congress to find her guilty of contempt in doing so, Congress would take the hit in the public's eye.
Strikes me that this is a wise way for Goodling to work the political/legal interface. Start with the assumption (which I think reasonable) that the subpoena is designed to score political points and/or to set Goodling up for a perjury charge. Add that the "perjury trap" defense is basically useless in a judicial proceeding, but has a lot of political appeal. Getting Goodling through a contempt of Congress prosecution would probably be a net political loser, while getting her through a perjury prosecution would likely be a net political winner. If the idea is to act in a way which avoids being prosecuted, the right approach would apparently be to avoid being the defendant in a popular prosecution.
I disagree. I think its far more likely that the "public eye" will take Goodling's pleading of the Fifth as an indication of guilt. They're not going to appreciate the finer points of Reiner. They'll believe either that 1) she's guilty of some crime, or 2) she's refusing to testify honestly. As a result, the public (who I don't think really care about a criminal defendant's right not to incriminate themselves that much), will probably have little sympathy for Ms. Goodling - and that's *regardless* of the merits.
Still don't buy this assumption. The argument's appeal won't go beyond George Bush's approval numbers - and that's mainly because that percentage of the people already made up their mind before they even heard about this contest of wills.
Remember this?
I'm going to have to go back and read the cited cases, as I don't recall much leeway for courts to explore whether taking the 5th is justified. Certainly one need not give incriminating information about oneself to justify its invocation.
The fact is that some members of Congress believe that one or more officials have committed a crime, either lying to Congress or obstructing justice by firing U.S. Attorneys to undermine a criminal investigation or some other offense. They want to interrogate, under oath and on pain of punishment if they fail to comply, the government officials involved in the acts which they believe to have been illegal. Congressional Democrats are not dispassionately trying to review the activities to make legislative decisions. They want to roast somebody, through their compelled testimony. The officials involved are protected from doing so by the 5th Amendment. They have no obligation to give ammunition to those government officials gunning for them. If Congress wants the testimony, they can grant immunity.
I'm glad Goodling's doing this. If a few more people stand up to these political destruction rampages, maybe Congress will realize that criminalizing politics has unfortunate consequences.
Oren -- I think you're confusing the law with the politics of the law.
The law:
The politics of the law:
Many of us believe that Libby was indeed caught in a perjury trap and would not trust either the Congress or the Administration with determining whether we walk free after testifying in a political case.
She provides testimony, but the majority of the Committee does not agree with what she said. Then the committee votes on a strict party line to charge her with criminal contempt of Congress. (Still no real crime) The matter is then forwarded to the USA for DC, but he refuses to prosecute because he does not believe a crime occurred.
Therefore, as Marty has pointed out before, Congress could find her in (civil) contempt of Congress. With the Democrats controlling both houses, it is not impossible to see how any testimony could produce a charge of contempt of Congress.
That's the way I read the letter, too.
Whatever Goodling's specific concerns about potential incrimination, I don't understand how they justify a blanket refusal to appear. It seems to me that she still has an obligation to sit in the chair and answer -- or refuse to answer -- question by question.
The most Congress could do is probably to hold Goodling in contempt. A contempt citation is not a criminal prosecution. Since the Fifth Amendment protects witnesses only from prosecution, fear that Congress might hold Goodling in contempt wouldn't justify her position.
But the savagery of life as a public official in these days, visited by both parties on members of the other, should mean public officials should have a way of going to ground. I believe many people avoid joining administrations or leave them quickly because of the threatened nightmare of years of lawyers, depositions, hearings and so on, ending in your getting indicted not because you did something wrong but because you are in between an AUSA or special prosecutor and his target. They indict the secretaries and drivers first.
I think this administration has ranged from tone-deaf to craven in its secrecy and its machinations, but I think the remedy to that is politics and regular oversight, not the legal waterboarding that both prosecutors and private lawyers in DC took from crude habit to high art under Clinton. The reality is this lady is in danger; let her defend herself. For political and oversight purposes, a procession of Bush officials pleading the fifth will do amply.
There's three kinds of information out there. Facts--it was light, it was dark, it was raining, it was warm. Stuff you think you know--I couldn't have been going that fast, I'm sure I entered the intersection when the light was yellow, etc. And then there's the common body of human knowledge--everyone knows that every snowflake is different; she's touching her neck, that means she's interested; the Cubs are going to fall apart come August.
When you're under oath, the only things you can know are in that first category. Everything else is an invitation to commit perjury.
--G
Bob Leibowitz, no, I'm not confusing anything. I'm just interested in the legal question -- is this a valid assertion of the privilege or not? Whether you personally feel comfortable with an assertion of the privilege may be an interesting question, but it's not my area of interest.
Libby case or not, you should tell the truth: that you don't remember. And your counsel probably shouldn't be telling you to lie.
Not on point, to be sure, but it begs to be said: If contempt of Congress is a crime, there aren't enough jails to lock up all the guilty - which must be at least 3/4 of the American public.
Is it really that hard to just tell the damn truth?
All of the perjury trap talk is specious. Libby was obstructing an investigation by lying, under oath, about facts material to the investigation. That's not a trap. And Libby may well have violated Federal law by revealing Plame's Identity in spite of the fact that Fitz didn't prosecute on that point.
There is an easy way to avoid these alleged perjury traps: Don't Lie Under Oath.
As to Monica Goodling pleading the 5th--well, she hasn't, I assume, even heard the questions yet so I don't know how she can plead the 5th.
Could somebody please explain this in layman's terms to us non-lawyers: How can anybody ever *know* with any degree of certainty whether or not they are likely to be accused of some crime? I mean, we are living in a society where (to paraphrase ... was it Ayn Rand??) "everything that isn't prohibited is mandatory" and there are thousands &thousands of non-intuitive laws on the books.
I'm thinking of Martha Stewart, for example. Wasn't she (more-or-less) convicted of 'covering up' a crime that had never actually occurred in the first place?
Suppose someone does take the fifth amendment, and then a Judge decides AFTER THE FACT that you weren't justified in so doing? Is there a severe penalty attached to that?? If so, the whole thing sounds like something straight out of Franz Kafka, or at least out of Joseph Heller's Catch-22.
Conversely, if there isn't any serious penalty, then isn't the rational choice to just tell them "name, rank, &serial number"; and then plead the fifth???
I'm one of the most law-abiding guys you could imagine... and if the FBI wanted to question me tomorrow about something, I'm not sure that I would cooperate. And I certainly wouldn't testify before Congress if I could possibly avoid it. Certainly my testimony would consist primarily of "I don't recall exactly."
Congress is a political institution. Rather ironic to watch them conduct a clearly partisan investigation based on claims of partisan influences on investigations.
You don't understand. Anything Goodling says to Congress can be used to convict her of an 18 U.S.C. 1001 violation for something she had already said, unsworn, in the ordinary course of business to another Justice Department "official" before the firings of the U.S. Attorneys took place.
The suggestion that she is trolling for a grant of immunity also makes sense. The catch here is that immunity is ordinarily conditioned upon the recipient's "truthful" testimony as to the events in question--with what is or is not truthful being determined here (unless an independent prosecutor is appointed) by the Gonzales Justice Department.
The possibility of an independent prosecutor further complicates the second scenario above. Assuming arguendo that a prospective witness's account of the facts is so malleable that (s)he will proffer whatever will further the chance of being granted imunity, does the witness go with the version that presents senior Justice Department officials in a favorable light, thus risking that a later appointed independent prosecutor will deem that account "untruthful" and seek to revoke immunity, or does the witness proffer facts that incriminate higher-ups, which, if those same higher-ups retain control, will lessen the chance of immunity being granted?
Of course, simply telling the truth and letting the chips fall where they may is not an option--these are Republicans, after all.
Of course the courts--or the Congress in this case--aren't going to like that. But how can they claim it isn't true?
Your recollection is faulty (if you actually have one). If North ever said "I don't recall" it was few and far between. His defense before Congress was "I did it. I'm proud I did it. I'd keep doing it if I had a chance." And that is what kept him out of jail. He testified so fully in congress that Walsh couldn't prove that his immunized testimony in front of Congress didn't provide most of the meat in Walsh's criminal case.
In Ollie North playbook is the best way to avoid criminal charges if you believe you have something to worry about: get immunity from congress and then testify as fully and completely as possible.
When "telling the damn truth" includes minor variations in wording from the misstated recollections of an interview for which the notes were lost? (Cf Libby, Bond, and Eckenrode.)
Yeah, it looks like it could be very hard to tell "the truth".
Well, frankly, considering J Edgar's "black bag jobs" for FDR, Truman, Kennedy, and Johnson, and considering Nixon was using tape machines Johnson had installed, yeah, it looked pretty partisan then and it looks pretty partisan now.
You have NO idea what deep s**t the Bush administration is in from Goodling's 5th Amendment privilege claim.
* Perjury convictions require intentionally false testimony. * As such avoiding perjury is not an accepted precursor to enabling the 5th amendment. If it were, it would be too broad of a defense, enabling anyone who would prefer to lie to escape giving any testimony.
However, if prior statements were perjurous, or at least false, refusal to testify and contradict prior testimony could be a cause for invoking the 5th. In this case, the witness knows that whether or not a crime has been committed depends merely on mens rea and therefore the risk of prosecution is high--especially when combined with an element of political vindictiveness.
Then go read up on Hoover and come back when you're not an ignorant putz.
Got it in one.
A perjury conviction under the law requires that the 'lie' be done "knowingly and willfully" (8 U.S.C. 1001). This point is particularly hard to prove (and defend against) but the prosecutor is favored by most juries precisely because of logic such as yours: an inability to conceive that testimony might be false or incomplete without "knowingly and willfully" being so.
Unfortunately juries tend to accept as proof mere evidence that defendant was advantaged by the lie.
There is no 8 U.S.C. 1001. The federal criminal code is Title 18. Perjury is 18 U.S.C. 1621, et seq.
18 U.S.C. 1001 is a different kettle of fish entirely - it does not entail sworn testimony at all, and its proof requirement is, AFAIK, much easier than that of perjuy. It likewise is much, much easier to abuse than the perjury statute.
I'm sorry you feel you must resort to such a response. Try re-reading my posts.
My point wasn't that Democrats never make partisan mountains out of molehills. Instead, it was that they aren't doing so this time, despite what some Republicans want us to believe. They evidently think Americans are dumb enough to believe that the party at fault must be the one making accusations and not the one accused of wrongdoing.
I mentioned Watergate because its the most extreme example of Republicans wrongfully accusing Democrates of partisanship in order to derail a perfectly proper investigation. In other words, I was asking PatHMV whether he would ever concede that Democrats could have legitimate reasons for investigating Republicans despite Republican accusations to the contrary.
When asked a probing question you'd rather not answer, the easy way out is to just hurl invective at the person who asked -- which is what you did to me. If you don't want to answer you don't have to. If you do answer, you should actually respond to the question instead of just lashing out.
Interesting.
Then, since the oath is a religious matter (a promise to God), the First would be implicated.
When Buckley's character CIA agent Blackford Oakes was called before the Church Commission in one of the novels that is what he did. He got away with it -- in fiction.
Or, if on the other hand you *are* ignorant, then other than suggesting becoming less ignorant, I'm still not inclined to indulge you.
So, basically, either you're meretricious or poorly-informed. Feel better now?
As I quoted before, the 5th Amendment protects one from being compelled, in any criminal matter, from being compelled to bear witness against himself. I may be convinced, by my own reasoning, that I have committed no crime. But if I have reason to belief that YOU and the judge and the prosecutor and the jury might possibly see things differently, I have no obligation to provide what you consider to be evidence against me. The prosecutor would use my statement against me, even if I am confident I would be acquitted before a fair judge and jury, and thus I am entitled to take the 5th.
Edward Hoffman... I never said that no Democrat could ever investigate a Republican without it being a partisan witch hunt. I simply said that THIS investigation is partisan.
I had no problem with Iran-Contra, for example. The Congress had passed, and the President had signed, legislation prohibiting providing aid to the Contras. Col. North and others circumvented (a polite term for "broke") that law. Now, I think that the independent counsel was not necessarily called for, and I'd rather have seen Congress grow some stones and hold an impeachment hearing on one of the lower ranking officials, rather than the never-ending criminal investigation, but that's a different issue.
But this foolishness? This is just partisan.
Congrats on hitting on the typo and avoiding the substantive issue.
If so, then I guess Bill Clinton hired the wrong lawyer.
PatHMV: You don't mind that prosecutors seem to have been fired for fully justified prosecutions of Republicans and/or for refusing to unjustifiably prosecute Democrats? Or that it seems the Justice Department -- including the Attorney General himself -- lied to Congress? One need not be a partisan Democrat to want these things investigated.
It is unfortunate that a DOJ public servant no longer feels comfortable telling the truth. Has the White House completely lost it?
In short, whatever Republicans do, it's always right, and when it isn't, well, the Democrats did it too.
4. Do you think Congress should -- or should not -- investigate the involvement of White House officials in this matter?
Yes, should No, should not No opinion
2007 Mar 23-25 72 21 7
15. If Congress investigates these dismissals, in your view, should President Bush and his aides -- [ROTATED: invoke "executive privilege" to protect the White House decision making process (or should they) drop the claim of executive privilege and answer all questions being investigated]?
BASED ON –526—NATIONAL ADULTS IN FORM A
Invoke executive privilege Answer all questions No opinion
2007 Mar 23-25 26 68 6
16. In this matter, do you think Congress should or should not issue subpoenas to force White House officials to testify under oath about this matter?
BASED ON –481—NATIONAL ADULTS IN FORM B
Yes, should No, should not No opinion
2007 Mar 23-25 68 24 7
17. Do you think congressional Democrats are investigating these dismissals mostly because they have real ethical concerns about the way the matter was handled (or) mostly because they want to gain political advantage?
Real ethical concerns Gain political advantage No opinion
2007 Mar 23-25 30 59 11
18. Do you think the Democrats in Congress are spending too much time, spending the right amount of time, (or) not spending enough time -- on this matter?
Too much Right amount Not enough No opinion
2007 Mar 23-25 40 33 15 12
Clearly, and overwhelming number of people think Congress should at least investigate the matter to see if there is anything there.
Vox populi -- you gotta love it.
The legal issues at stake here are way beyond my competence, but it boggles my mind that anyone, even a diehard Bushie, would think having the Attorney General's own lawyer plead the 5th is NOT a PR debacle of the first order.
Everybody knows that only commies and wise guys take the 5th. Which is why I suspect Leahy and company will be more than happy to let Goodling trot up to the Hill and repeat the mantra -- "I respectfully decline to answer, etc. etc." - many times.
After all, as someone pointed out earlier, Iran-Contra demonstrated that taking immunized testimony is a great way to queer a future prosecution. Fool me twice, shame on me, etc.
Basically, this story is beginning to remind me of one of those sinkholes they have down in Florida, that start out as a dimple in the asphalt and end up swallowing the houses on either side of the road.
As conservatives are fond of saying in defense of our loss of civil liberties due to "terrorism", "if you haven't done anything wrong, you have nothing to hide". A lot of people have bought that argument. Pleading the fifth makes it look like she has something to hide and therefore has done something wrong. Her reasoning is irrelevant. When news is a string of soundbytes and few people read anything other than the headline in an article, the vast majority of the people out there will never hear her arguments or, if they did, give it any serious thought.
As for misleading Congress, I've grown tired of investigations only into a "coverup" which lasted for all of a few weeks or so, when there was no underlying criminal activity. I have no idea at this point, despite the thousands of e-mails released by the White House and DOJ, how the preparation for the original information provided to Congress was done. Much of the dispute I've seen so far looks like either lower level folks briefed the higher ups with incorrect information or the folks giving the testimony spoke very carefully, with some pretty vague language. And no, please don't bother to have the argument about exactly what the evidence is at this point, that would take us off-topic, and get us nowhere. Suffice it to say, I don't accept your premise.
Keep the discussion civil or else I'll just ban individual commenters who are seem unable to have a civil discussion. I don't want to have to moderate threads to see if people are crossing the line, so please don't even get close.
Thanks,
The Mgmt.
I have no problem with partisanship and like divided govenment. It keeps both sides honest, or, I should say, less dishonest.
I don't think its reasonable to believe that the target of the investigation is Monica Goodling.
Hmm, Nixon was a conservative? In comparison to Humphrey I suppose? Certainly not in the eyes of the soon-to-be-ascendant Goldwater/Reagan wing of the Republican Party.
As for Vietnam, the "conservatives" in the ruling party of the day were Democrats - back when there actually was such a thing as a conservative Democrat.
Certainly it is fun, and easy, to assume Republican malfeasance. But that does not justify rewriting history to suit one's biases.
Didn't the Justice Department use a nearly identical theory in the Computer Associates case in EDNY (i.e., charging corporate executives under 18 USC 1001 based on false statements that the executives gave to private lawyers conducting an internal investigation while knowing that those lawyers intended to relay those statements to the Justice Department)?
Goodling seems just the sort of small fish that, once granted immunity, nets the bigger fish. No one in Congress cares about putting *her* away. I would expect an immunity offer this week.
Justin,
Is that the standard for asserting your 5th Amendment rights, a reasonable belief that you might be the (current) target of an investigation? [I don't think that Libby was the target of Fitzgerald's investigation. (I think Fitzgerald was hoping to get Libby to cooperate against Cheney or Rove.)] I thought all that was required was a plausible belief that your testimony might be used against you. I'd argue in a charged environment, the threshold for being worried that you might end up in some prosecutor's sights is lower than it would be in an ordinary environment.
1. My boss gets subpoenaed to testify on a subject where I am familiar with the details.
2. I prepare my boss to testify, and he does so in accordance with my advice.
3. Folks start suggesting that my boss lied under oath.
4. Now they want to subpoena me to ask, among other things, whether I advised my boss to testify in that manner.
What am I to do? If I tell the truth, I seem to have admitted to participating in a conspiracy to commit perjury and/or obstruct justice.
Please don't pretend that my post was not a direct response to your comment that, and I quote:
"Instead, it's reasonable for her to assume they are asking her to give them the ammo to shoot her with. This is exactly the kind of thing the 5th Amendment was designed to prevent."
You've of course missed the key issue in both your first post and your original post - Kastiger does not require immunity for future conduct, and it particularly does not require immunity from perjury.
You assume that Congressional Democrats have no interest in politics - that they don't care about making themselves look good, or making the Bush administration look bad - not to mention your assumption that they really do care about undue injuries to the innocent.
Congressmen &Senators making life miserable for officials of opposing admininistrations, thereby creating a chilling deterrent effect on the willingness of able people to serve in high federal Executive office, is not something new.
It really doesn't matter what happens now. The Dems have created the impression that something was nefariously done in firing the USA's, and this person taking the Fifth only adds to it. No need to prove anyone guilty of anything, it is only necessary to create the impression of guilt in politics.
Yes, and of course -- "conservative" is always a relative term, just as "liberal" is. Nixon was, in the political spectrum of his time, a conservative.
And as for Vietnam, of course that was a "conservative" issue. Unless you think the anti-war protestors were not the liberals.....
Whoa, I expressed myself badly then. Sure, the Dems would be happy to throw Goodling to the wolves, all things being equal. (So would the Repubs.) But if Goodling will sing, then the Dems do both of the things you name, and Goodling just has her professional reputation ruined (I suppose she could still be disbarred even after an immunity grant).
I see that Andrew Sullivan has run with the immunity idea as well, but nevertheless, I may be right about it anyway ....
Funny how Ms. Goodling, who is in a better position to know, lacks such confidence.
I suppose we'd better blame that on the Democrats. Because of course, it's Congress that prosecutes people.
I do not recommend the above procedures despite my Republican leanings. Nevertheless, I still cannot get over the arguments and procedures entertained as serious and COnstitutional law enforcement efforts.
Ok then. I'll just say "Pass the popcorn" and leave it at that.
Thanks, Prof. Kerr.
Only if you advised your boss to not tell the truth. If the boss did in fact lie, then you are fine if you told him to tell the truth, but he ignored you. If the boss told the truth, then there is no problem.
The problem arises only if you adviced him to lie, and he did so. And you would indeed be guilty of conspiracy for perjury or obstruction of justice.
II realize there may be a shady area where you tell your boss to tell the truth, but somehow it comes out wrong, and it looks like the boss lied. However, this is an attorney with the United STates Department of justice. I would hope that the quality of attorneys that they hire are such that they can anticipate such shady areas and lay out a clear course of action beforehand. And of course, you send your boss emails to cover your ass in any case.
But that would assume that the Bush Administration hires competent people. If Goodling is truly so incompetent that she didn't know how to properly handle a delicate political situation such as this, then she probably should not be in her position in the first place. Certainly Gonzales should be astute enough about this to have avoided it in the first place.
Not as straight-forward as you would like it to be. Certainly Nixon had some 'conservative' views, particularly on law and order. There was nothing conservative about his economic views - he was to the left of many Democrats. As for the Cold War and Vietnam, that was not a liberal/conservative break - unless you simply redefine who was what to suit your viewpoint. Admittedly, there aren't many Scoop Jacksons or Mark Hatfields around these days - which makes it difficult to fathom politicians of the past.
And as for Vietnam, of course that was a "conservative" issue. Unless you think the anti-war protestors were not the liberals.....
Hmm, so now LBJ, not to mention the Congressional majorities, were "conservative" because those who opposed him [them] on the war were "liberals" (including not a few Republicans)? Damn, how can you keep score when no one stays on the same side?
It's odd, but I've never heard a conservative say that. And while I'm sure that some conservative, somewhere, has said it, I really doubt that conservatives are fond of saying it--that is, that it's being said under more than under rare circumstances by occasional extremists.
Do you have a source for this strange bit of information?
I am not J.F. Thomas, but, yes.
The way they explained it in my 7th grade history class and my 12th grade civics class, what the 5th means is you can't be compelled to testify against yourself -- like, they can't waterboard you to make you confess, that kind of thing. But you have to be guilty of something. If you're innocent you can't take the 5th.
The low-life drug dealer who takes the 5th is guilty of something, but there's still the question precisely what he's guilty of, and can they prove it.
Roughly 220 million americans who don't know any more about law than they learned in 12th grade civics will think that she just confessed that she's a criminal -- whenever they get around to noticing. But she doesn't have to talk about it to the police or to Congress or to the media because she doesn't have to provide the details that would get her convicted of her crimes.
The low-life drug dealer doesn't get to tell the judge "I'm taking the 5th amendment. Really I'm completely innocent but I'm not going to talk about anything because the DA has it in for me and he'd twist it around to make me look guilty." That doesn't work. If the DA tries to make you look guilty, you and your lawyer are supposed to tell the truth and show that he's twisting it around. It may not actually be that way in law, but that's the way americans believe it is. you can't take the 5th unless you're guilty. But taking the 5th doesn't prove you're guilty of precisely the crime you've been charged with.
As for 18 USC Section 1001, bear in mind that the false statement must be material to the government's inquiry. Martha Stewart was nailed for lying to the SEC/FBI about why she traded ImClone, during an insider trading inquiry. In Computer Associates, some of the executives pled guilty to Section 1001, because they lied to Wachtell Lipton (the internal investigating law firm) and supposedly knew the lies would be passed on to the DOJ/SEC. I am not sure these convictions would have withstood a challenge, however, as the false statements may not have been "within the jurisdiction" of the SEC/DOJ.
Forgive me, I was not trying to pretend anything of the kind. In my original post I tried to outline how someone in Ms. Goodling's position could believe that her testimony could be used against her even though she did not believe she had broken the law. You responded to my assertion that she might believe that she was being asked to give the Committee the ammo to shoot her with by saying you thought it was unreasonable to believe that she was the target of the investigation. I responded with the question as to whether it is your position that someone has to reasonably believe they are the target of an investigation before invoking the 5th Amendment. From your response, I take it that you were quibbling with how reasonable it would be for her to believe she was the target of an investigation.
Allow me to respond by saying that I did not say it was reasonable for her to think she was the target of the investigation. (Of course she's not, the AG is the target. She's just collateral damage.) I said it was reasonable for her to assume that the Committee would do its best to use her testimony against her. As others have noted, that, in and of itself, is not enough to bring the 5th Amendment into play. If all she had to fear from her testimony before the Committee were personal and professional embarrassment, she should not be able to invoke the 5th Amendment to prevent testifing. She has to believe that her testimony might subject her to criminal jeopardy.
Can we outline a scenario wherein Ms. Goodling might reasonably fear criminal liability for her actions that are to be the subject of her testimony (not for perjury in the testimony itself)? Yes, I believe we can. Members of the Committee have made it clear that they believe the information provided by the DOJ was false and misleading. She helped deliver that information by briefing those who would testify to Congress. Suppose she asserts before the Committee that the information delivered by the DOJ was in all material respects accurate. (Suppose, also, that she believes this to be true.) The Committee would unlikely believe such testimony. The Committee might believe that she was part of an active effort to deceive Congress and then to cover up that attempt. Her (from the point of view of the Committee false) testimony would only reinforce the Committee's belief she had willingly participated in the DOJ attempt to cover up the true nature of the USA firings. Not only would she be at jeopardy for a referral to the DOJ for perjury, but also for her original part in preparing the information the Committee has determined to be false. It is this second jeopardy (for her actions before giving testimony to the Committee) that I believe is the necessary predicate for her assertion of the 5th Amendment protection against self-incrimination. Do you disagree?
But that is _not_ what she's claiming.
"The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real," said the lawyer, John Dowd.
How could she make it clearer that she is not claiming her right only because of a danger that would arise if she lied under oath?
If everything she says is the truth, how can she be prosecuted for perjury? There has to be a lie somewhere in order to be charged with perjury.
One possible motivation for her actions is that she is worried about being caught in a previous lie or for advising someone else to lie. In this scenario it possible that by telling completely truthful statements she can still be charged with perjury. If she's pleading the fifth to avoid disclosing someone else's lie, then congress should compel her testimony in order to figure out who lied to them and why. you can't take the 5th to protect someone else. (with the possible exception of family members. i don't remember if that was a legitimate reason to take the 5th)
Brian K,
I am not aware of a requirement that "there has to be a lie somewhere" before someone can be charged with perjury. All I'm aware of is a requirement for a colorable claim that a lie exists. Thousands of perfectly innocent people have been charged with crimes in this country. Some have even been convicted. All the prosecutor need do is marshall enough evidence to present a prima facie case to the grand jury. We hope that prima facie case will be married with a good faith belief on the part of the prosecutor that perjury was committed, but I can see no reason for Ms. Goodling to place much reliance on the good faith of the Committee nor do I see why she should be willing to risk her future on the integrity of some career prosecutor who is under pressure from the Committee to prosecute. So, no, I don't think she had to tell a lie or advise her boss to lie to be at jeopardy under these circumstances. The Committee is out for the AG's blood and I don't think they will cavil about destroying Ms. Goodling on the way to that objective.
Orin Kerr: "Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth?"
No, that is not Monica Goodling's rationale for taking the Fifth.
I was not blindly speculating as to her motives.
I'll do that now. :P
If the outcome of her refusing to testify is that Monica Goodling goes to jail for less time than she would if she let herself be pushed into the perjury trap (and preferably no jail time at all, but you can't always get what you want), and if because she took the Fifth most Americans think there must have been a crime, and that hurts her disloyal boss, is that not win/win for an employee who can see herself being thrown to the wolves?
I think Tom Holsinger nailed the key points in his post at 3.26.2007 6:39pm.
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Brian K: "David,
If everything she says is the truth, how can she be prosecuted for perjury? There has to be a lie somewhere in order to be charged with perjury."
Injustices can occur. It looks to me like Monica Goodling is trying to stop one happening to her.
Or if she can't avoid going to jail, as may be the case even is she is innocent, she would rather do less time. That's not hard to understand.
One thing I am curious about. At Regent University Law School (ABA-accredited 1996) of which Goodling is an alumnus, is Lying for Jesus a core or elective subject?
It sounds like he is saying that if his client tells the truth, she will reveal her criminal activity. By being truthful and accurate, she will show how what they (she) was doing was illegal.