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Goodling To Take the Fifth:
The Associated Press reports:
  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.
  "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.
  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?

  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).
Goobermunch (mail):
Is it possible that she believes her conduct in the firings of the dismissed USAs might have actually been criminal? That's really quite a disturbing thought.

--G
3.26.2007 7:06pm
StevenK:
What she's doing is fairly straightforward. As in the Libby case, she likely feels the underlying activity is not criminal, and much of the point of the investigation is to catch someone in a statement which can be prosecuted.

The Fifth Amendment may not cover this, but her motives are not particularly mysterious.
3.26.2007 7:09pm
Roger:
But the key point there, StevenK, is that the Fifth Amendment doesn't cover that.
3.26.2007 7:10pm
Shelby (mail):
Perhaps the rationale is that whatever she says, Congress is likely to press for charges against her, so why risk giving them ammunition? I don't know that it's a very persuasive argument and it's really more political than legal, but it's consistent with the letter.
3.26.2007 7:11pm
Owen Hutchins (mail):
Why give any explanation at all? One need not do so to invoke the right, after all. Looks to me like just trying to score a political point, that she won't get a fair shake and that's why she's invoking.
3.26.2007 7:16pm
David M. Wagner (mail) (www):
Undoubtedly she remembers Ted Olson's case. Any hearings conducted by the new majority will probably be primarily for the purpose of producing special counsel investigations, by creating an appearance of contradiction either within a witness's testimony, or between that testimony and some other known fact.

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.
3.26.2007 7:17pm
TLove (mail):
Very naive. It's rapidly becoming the point of getting testimony, whether in front of Congress or to Federal prosecutors, to set up a perjury prosecution. That's what the reference to Libby meant. The number of high profile prosecutions for perjury with no associated underlying crime is going to produce this sort of back lash.

Prosecutors should, but appear not to, understand this.
3.26.2007 7:18pm
Justin (mail):
To the degree that the defense is based on the Fifth Amendment, it's very unpersuasive (regardless of whether you believe there's an underlying crime or not). To the degree that the defense is *not* based on the Fifth Amendment, she is acting in contempt of Congress and may be prosecuted as such - subject to all the fun standing issues that might apply if DOJ tries to make her contempt nonjusticiable.
3.26.2007 7:18pm
Eugene Volokh (www):
TLove: The problem, as Orin's post pointed out, is that concern that you'll be accused of perjury for what you say at this particular hearing does not legally authorize you to plead the Fifth as to that hearing.
3.26.2007 7:20pm
Justin (mail):
You don't have a Fifth Amendment protection against perjury, unless you are testifying about previous (perjuous) testimony.

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.
3.26.2007 7:21pm
Justin (mail):
Whoops. EV beat me to that one.
3.26.2007 7:22pm
anonymous coward:
The stuff about the biased committee and so forth is probably just political point-scoring. The actual fear seems to be the following:

Here's her logic for pleading the Fifth in a nutshell: she won't get a fair hearing because Democrats have already concluded DoJ officials lied to Congress and one Justice Department official has already admitted to Democrats that he was "not entirely candid" in his testimony and blamed Goodling and others for the lapse.


From http://www.tpmmuckraker.com/
3.26.2007 7:27pm
Hans Bader (mail):
You don't have to be guilty to plead the fifth, or prove that you would in fact incriminate yourself if you testified.

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.
3.26.2007 7:29pm
Anderson (mail):
What crime might Goodling have committed?

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?
3.26.2007 7:31pm
Greg S. (mail):
In light of the Libby case, if you are counsel for Goodling and a Senator asks a question about something that she knew at one point but now does not recall how would you advise her to answer?
3.26.2007 7:39pm
Tom Holsinger (mail):
This is not surprising.

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?
3.26.2007 7:39pm
Randy R. (mail):
I suppose it's comforting to see that the Bush Administration still thinks the Bill of Rights is still viable.

Well, at least for one of their own....
3.26.2007 7:39pm
Centrist:

TLove: The problem, as Orin's post pointed out, is that concern that you'll be accused of perjury for what you say at this particular hearing does not legally authorize you to plead the Fifth as to that hearing.

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.
3.26.2007 7:41pm
zooba:
There might a reasonable claim of 5th amendment protection on accessory / conspiracy to contempt of congress / obstruction of justice.
3.26.2007 7:47pm
M. Lederman (mail):
Reading between the lines of Dowd's oblique letter, I think the theory is that she faces culpability for having been responsible for *previous* false statements made by others to Congress under oath. If, say, she were asked whether she prepared McNulty for testimony by feeding him inaccurate information, her (truthful) answers might incriminate her in a past crime. Just a guess.
3.26.2007 7:47pm
Justin (mail):
M. Lederman and others' reading of the letter, though certainly the best charitable reading, does not seem to comport with the last 2 full paragraphs of page 2 of that letter. Foreclosing Lederman's reading seems to be the statement "from even her most truthful and accurate testimony." Further casting doubt on that reading is the previous paragraph, which talks about criminal culpability of "witnesses who give testimony before the Congress," rather than say, criiminal culpability "arising from a witness's testimony." Tbe cases cited were all cases where the criminal act occurred during the testimony - there does not appear to be any relevant previous testimony of Monica Goodling.

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.
3.26.2007 7:57pm
John Burgess (mail) (www):
Simply refusing to testify would certainly line her up for Contempt of Congress charges. Pleading that she may incriminate herself in some criminal action through her statements and is thus availing herself of Fifth Amendment protection seems like the smart way to go.

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.
3.26.2007 7:58pm
Edward A. Hoffman (mail):
If Goodling was involved in deciding which U.S. attorneys were to be fired and if they were fired in order to derail ongoing investigations and/or prosecutions, then she may be guilty of obstruction of justice. Also, if she was involved in preparing any false information for Congress -- even if she prepared it for someone else's signature -- she could be prosecuted for that conduct. I don't know how strong such charges would be, but the Fifth Amendment applies even where proving guilt would not be a slam dunk.
3.26.2007 7:59pm
Justin (mail):
Also, note the citation to Ohio v. Reiner in Goodling's affidavit. In that case, citing Hoffman v. United States, 341 U.S. 479 (1951), the Court stressed that a potential witness need only show "from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Injury, of course, would appear in Goodling's instance (under Lederman's reading) to be an investigation into whether she actually did suborn perjury by encouraging the previous testimony, even as she clings to the position that the previous testimony was not perjurous because it was true.
3.26.2007 8:02pm
PDXLawyer (mail):
Informative post, Orin. Thanks.

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.
3.26.2007 8:05pm
Justin (mail):
"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."

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.
3.26.2007 8:06pm
Justin (mail):
"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."

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.
3.26.2007 8:08pm
Justin (mail):
I might also point out that there's no evidence that the White House encourages or supports Goodling's decision. Bush's proposed "compromise" "offered" Goodling's testimony under oath - at least in exchange for Rove's testimony *not* to be under oath. And John Dowd is a well respected attorney - its unlikely he's representing the White House's interests at the expense of Ms. Goodling's.
3.26.2007 8:10pm
33yearprof (mail):
Which would you rather have a short jail sentence for civil contempt. Or a FELONY conviction and longer jail sentence for violation of 18 UCS 1001? All based on some FBI agent's recollection of what she thinks she heard you say months ago (ask Martha Stewart).

Remember this?


I know that you believe you understand what you think I said, but I am not sure you realize that what you heard is not what I meant.
3.26.2007 8:13pm
PatHMV (mail) (www):
nor shall be compelled in any criminal case to be a witness against himself


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.
3.26.2007 8:15pm
Bob Leibowitz (mail) (www):

Oren -- I think you're confusing the law with the politics of the law.

The law:

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.

The politics of the law:

Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity.

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.
3.26.2007 8:16pm
Jeff Shultz (mail):
Time to play the Ollie North defence, "I'm sorry Senator, I don't recall that information at this time...."
3.26.2007 8:17pm
Sticky (mail):
In Orin's original post he says that: "[t]he 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." What if this crime is not perjury, but instead contempt of congress.

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.
3.26.2007 8:19pm
Kazinski:
The Libby case is going to have a chilling affect of testimony of people that do not believe they have committed any crime, and want to make sure that any testimony they give is not the basis for any prosecution. It is really a put-up or shut-up challange to congress: If they believe there was criminal activity then back off and wait for a prosecutor to open an investigation, or if they don't belive anything criminal happened then offer immumity. And anyone that believes that Congress should be in the forefront of investigating potential criminal activity should review the history of the Iran-Contra hearings, trial, the appeals, and the reversals of convictions.
3.26.2007 8:19pm
Just an Observer:
M. Lederman:

Reading between the lines of Dowd's oblique letter, I think the theory is that she faces culpability for having been responsible for *previous* false statements made by others to Congress under oath.


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.
3.26.2007 8:27pm
Edward A. Hoffman (mail):
John Burgess wrote:
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.
The problem with this theory is that Congress can't charge anyone with a crime. Only prosecutors can do that. As we all know by now, prosecutors are part of the executive branch. Separation of powers means that Congress can't make the executive branch prosecute anyone, just as it can't make the judicial branch convict anyone.

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.
3.26.2007 8:28pm
Andrew Okun:
It seems to me that conspiracy to obstruct justice is a thing anybody who knew about any of this could be charged with. I don't know whether it would be a valid charge, but it seems plausible enough. I think the comparison to Libby was a mistake for her to have made for the reasons mentioned and by the strict reading everyone here is giving, i.e. "I plead the fifth because I'm liable to lie like dirt right now," it is probably not valid.

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.
3.26.2007 8:29pm
Goobermunch (mail):
It's like I always tell my clients:

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
3.26.2007 8:31pm
OrinKerr:
All, I've been adding some updates to the main post, so please check them out.

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.
3.26.2007 8:33pm
Edward A. Hoffman (mail):
Justin wrote:
I think its far more likely that the "public eye" will take Goodling's pleading of the Fifth as an indication of guilt.
I'm not sure I see your point. Fear of what the public will believe doesn't justify taking the Fifth.
3.26.2007 8:35pm
gr (www):

In light of the Libby case, if you are counsel for Goodling and a Senator asks a question about something that she knew at one point but now does not recall how would you advise her to answer?

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.
3.26.2007 8:36pm
Barbara Skolaut (mail):
"Once an individual has been found in contempt by either House of Congress"

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.
3.26.2007 8:41pm
Steve H (mail):
What's all this talk about "perjury traps"?

Is it really that hard to just tell the damn truth?
3.26.2007 8:43pm
Tom Holsinger (mail):
Only 33yearprof has caught on to the 18 U.S.C. 1001 implications here. Goodling already faces potential criminal liability for her statements within the Justice Department. Given Libby's 18 U.S.C. 1001 conviction, her self-incrimination objection looks pretty good.
3.26.2007 8:50pm
scote (mail):
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.


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.
3.26.2007 8:52pm
john w. (mail):
Orin wrote: " ...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? ..."

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???
3.26.2007 8:53pm
PatHMV (mail) (www):
Steve H... Yes, in this environment, it can be. Here in Louisiana, one of our former Insurance Commissioners was convicted of lying to the FBI about how familiar he was with a particular liquidation. In fact, he was fairly familiar with the details of what was going on. According to the notes taken by the FBI agent, he told the FBI agent that he didn't know that much about it. But even by the FBI agent's notes, his statement was pretty vague. And it is unshakable FBI policy that such interviews are not recorded, ever. That's it. Whether he was "very" familiar with the case or "a little" familiar with it.

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.
3.26.2007 8:54pm
Tom Holsinger (mail):
scote,

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.

"...whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry ...;"
3.26.2007 9:04pm
John Herbison (mail):
Mr. Dowd's letter on its face seems bizarre. To engage here in rank speculation, Professor Lederman's take on the letter is plausible: that Ms. Goodling potentially faces culpability for having been (at least indirectly) responsible for "previous" false statements made by others to Congress under oath.

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.
3.26.2007 9:04pm
Edward A. Hoffman (mail):
PatHMV wrote:
Congress is a political institution. Rather ironic to watch them conduct a clearly partisan investigation based on claims of partisan influences on investigations.
Let me get this straight. Republicans in Congress are trying to prevent investigations into the misdeeds of Republicans in the Justice Dept., and you think the Democrats are the ones making it partisan? Do you think Watergate was partisan too?
3.26.2007 9:06pm
Mark Jones (mail):
Ms. Goodling is only doing something I've thought about for years. My version would go something like this: "There are [very large number] of federal laws, rules and regulations. I do not know them all. I _cannot_ know them all. But the principle that 'ignorance of the law is no excuse' means that I can be convicted of violating them nonetheless. Given that, anything I say might tend to incriminate me. Therefore I am invoking my fifth amendment right to refuse to testify."

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?
3.26.2007 9:06pm
Kazinski:
Jeff Shultz:

Time to play the Ollie North defence, "I'm sorry Senator, I don't recall that information at this time...."

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.
3.26.2007 9:11pm
Charlie (Colorado) (mail):
Is it really that hard to just tell the damn truth?

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".
3.26.2007 9:15pm
Charlie (Colorado) (mail):
Republicans in Congress are trying to prevent investigations into the misdeeds of Republicans in the Justice Dept., and you think the Democrats are the ones making it partisan? Do you think Watergate was partisan too?


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.
3.26.2007 9:25pm
Tom Holsinger (mail):
All of you ignore my point that Bush administration political appointees have just served President Bush with notice that they won't keep his administration from looking bad if there is any risk of criminal prosecution for doing their jobs, because they know he won't protect them and has in fact created precedents which put them in criminal jeopardy for doing their jobs.

You have NO idea what deep s**t the Bush administration is in from Goodling's 5th Amendment privilege claim.
3.26.2007 9:27pm
Tom Holsinger (mail):
And it couldn't happen to a more deserving guy.
3.26.2007 9:28pm
Charlie (Colorado) (mail):
This does raise an interesting question, at least for this non-lawyer: Orin is asking whether its a valid assertion of her Fifth Amendment rights --- but, given that you can't answer *any* substantive questions without being held to have waived your Fifth Amendment rights, how could anyone ever determine if her fears were justified? how could the question be adjudicated?
3.26.2007 9:30pm
Charlie (Colorado) (mail):
No, Tom, I think we're just observing that you're assuming the consequent: it's equally possible that she's acting to ensure that she won't put Bush in the position of having to protect her. What *you* think her motivation is, isn't evidence of anything but your state of mind.
3.26.2007 9:34pm
abean:
I don't see why this would be a settled question of law under the circumstances. The following is certain:
* 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.
3.26.2007 9:37pm
Edward A. Hoffman (mail):
Charlie (Colorado) wrote:
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.
I didn't ask about Hoover, I asked about Watergate. And unless my memory fails me, it was about something a bit more important than whether Nixon used tape recorders or about who installed them.
3.26.2007 9:38pm
Mark Field (mail):
This strikes me as a public relations disaster for the Administration. The public will believe she's guilty; all of a sudden, the scandal has become much more credible. And now what will the Administration do if Congress asks for a Special Prosecutor?
3.26.2007 9:38pm
Charlie (Colorado) (mail):
I didn't ask about Hoover, I asked about Watergate. And unless my memory fails me, it was about something a bit more important than whether Nixon used tape recorders or about who installed them.

Then go read up on Hoover and come back when you're not an ignorant putz.
3.26.2007 9:40pm
Charlie (Colorado) (mail):
Here's a hint: LBJ, Bobby Kennedy, the FBI, and Martin Luther King, Jr.
3.26.2007 9:43pm
Tom Holsinger (mail):
Charlie, I hear that the Islamic Republic of Iran needs a new flack. You're a shoo-in for the job.
3.26.2007 9:43pm
Tom Holsinger (mail):
Mark Field,

Got it in one.
3.26.2007 9:44pm
abean:

There is an easy way to avoid these alleged perjury traps: Don't Lie Under Oath.

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.
3.26.2007 9:46pm
Charlie (Colorado) (mail):
Can't go a whole response without the ad him, eh?
3.26.2007 9:51pm
Charlie (Colorado) (mail):
Crap. "ad hom".
3.26.2007 9:51pm
Tom Holsinger (mail):
tabean,

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.
3.26.2007 9:54pm
Tom Holsinger (mail):
oops, "abean", not "tabean".
3.26.2007 9:55pm
Edward A. Hoffman (mail):
Charlie (Colorado),

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.
3.26.2007 9:55pm
J. F. Thomas (mail):
So no crime has been committed, she will not lie, yet she still is going to invoke her Fifth Amendment Right.

Interesting.
3.26.2007 9:59pm
Duncan Frissell (mail):
Why not show up, take the oath, and in the course of taking the oath promise to lie.

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.
3.26.2007 10:16pm
Charlie (Colorado) (mail):
Ed, the original question was whether or not Watergate was partisan. If you're not actually ignorant of what was done by previous administrations --- including, for example, the various burglaries, blackmails, and other felonies committed by the FBI during the civil rights civil disobedience of the 60's --- then the hint should be sufficient: it's real hard to point to anything Nixon et al did that can't be exactly matched to previous administrations. As such, yes, I think there's a good argument to be made for Watergate as having been essentially partisan, with a certain admixture of Legislative vs Executive powergrabbing. Given the assumption that you were in fact aware of the malfeasance of the FBI etc, then your "I didn't ask about Hoover" snip is merely a rhetorical trope, and I don't care to indulge you.

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?
3.26.2007 10:17pm
PatHMV (mail) (www):
So J.F. Thomas... next time some low-life drug dealer "takes the 5th," I would be justified in presuming him guilty?

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.
3.26.2007 10:22pm
abean:
Tom Holsinger,

Congrats on hitting on the typo and avoiding the substantive issue.
3.26.2007 10:24pm
Peter Principle (mail):
"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 . . . Perhaps that's what Goodling's lawyer has in mind?"

If so, then I guess Bill Clinton hired the wrong lawyer.
3.26.2007 10:25pm
Edward A. Hoffman (mail):
Charlie (Colorado): When you are able to discuss things civilly I'll be happy to continue our discussion.

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.
3.26.2007 10:35pm
sferris (mail):
"It is unfortunate that a public servant no longer feels comfortable that they will be treated fairly in testimony in front of Congress," White House spokeswoman Dana Perino said.

It is unfortunate that a DOJ public servant no longer feels comfortable telling the truth. Has the White House completely lost it?
3.26.2007 10:37pm
Randy R. (mail):
This is a bit off topic, but recently I've seen conservatives have a meltdown on numerous issues. All of a sudden, when things are going badly for them, they keep invoking Vietnam, Nixon, Jimmy Carter -- it seems that Faulkner was right, the past isn't even past. Obviously, such earth shaking events like Watergate and Vietnam, both of which were big stains upon the conservative soul, and it STILL grates on their nerves. So whenever you bring up something similar, they keep yelling "Partisanship!"

In short, whatever Republicans do, it's always right, and when it isn't, well, the Democrats did it too.
3.26.2007 10:45pm
Randy R. (mail):
From a recent USA Today poll:
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.
3.26.2007 10:51pm
sferris (mail):
Do we need to take a poll to investigate the DOJ?
3.26.2007 10:56pm
Peter Principle (mail):
If I read those poll numbers correctly, the American people believe the Democratic Congress is grandstanding on this issue for political advantage -- and they want them to go right on doing it.

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.
3.26.2007 11:11pm
Brian K (mail):
In regards to the potential political fallout of this incident, I think the administration will lose. democrats probably will not get a boost though.

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.
3.26.2007 11:13pm
PatHMV (mail) (www):
Edward Hoffman... I don't accept your characterization of the events. I've seen no credible evidence that the replacement of any of the U.S. Attorneys was done to interfere with particular investigations. One, perhaps, was done to install a political type who needed a job, which is not a very good practice but not particularly unethical and certainly not criminal.

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.
3.26.2007 11:21pm
OrinKerr:
ALL:

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.
3.26.2007 11:23pm
sferris (mail):
Policital fallout? We don't know the whole story yet? The broad outlines of this scandal are starting to come into relief. Isn't it little earlier to be weighing in on the fallout? We just had the Walter Reed hearings, and now the DOJ. How much incompetence is enough? Jesus.
3.26.2007 11:24pm
Sean O'Hara (mail) (www):
So if she pleads the 5th, Congress tells her it doesn't apply and threatens her with contempt, and she then testifies and reveals a crime, could her statements and evidence gathered on the basis of those statements be used against her?
3.26.2007 11:36pm
David Walser:
If the Committee has already made up its mind what the truth is, and she accurately testifies as to what she did before and after the replacement of the eight US Attorneys, she may be afraid that the Committee will determine that her actions were part of some conspiracy to obstruct justice by replacing a US Attorney that was investigating the "wrong person" or that her actions were part of the attempt to mislead Congress. In either case, the Committee could refer the case to the DOJ for investigation and possible prosecution. (Recall that members of this Committee demanded the appointment of a Special Counsel in the Libby matter.) In other words, she does not need to believe that she did anything wrong, only that her testimony may be used by someone in an attempt to prove she did something wrong. Given the statements of members of the Committee, she'd have to be awfully naive to assume that the Committee is in a good faith search of the truth. 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.
3.26.2007 11:42pm
Stash:
Anybody notice the irony that each side is accusing the other of wrongfully engaging in partisan investigations/prosecutions? However, if it is awful for partisan investigation by Congress of DOJ to take place, it can only be worse if partisan investigations (or non-investigation) at DOJ took place, which is at least one of the allegations and currently has some nonconclusive circumstantial support. On the other hand, if naked partisan use of DOJ is okay and no reason for scandal, then one can hardly suggest that a partisan congressional investigation is scandalous.

I have no problem with partisanship and like divided govenment. It keeps both sides honest, or, I should say, less dishonest.
3.26.2007 11:50pm
Justin (mail):
David,

I don't think its reasonable to believe that the target of the investigation is Monica Goodling.
3.27.2007 12:00am
juris_imprudent (mail):
Obviously, such earth shaking events like Watergate and Vietnam, both of which were big stains upon the conservative soul

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.
3.27.2007 12:04am
Goodling's attorney is probably being appropriately cautious:
Why wouldn't 18 U.S.C. 1505 potentially apply? If it can be shown that Goodling knowingly and corruptly gave false information to McNulty while knowing that McNulty would then pass that false information to Congress, one could theoretically argue that she "corruptly . . . influence[d], obstructed[ed], or impede[d] . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress . . . ."

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)?
3.27.2007 12:11am
Anderson (mail):
Hm, my notion that she's asking for an immunity offer doesn't seem to have persuaded anyone, but that still makes better sense to me than that she's got a genuine Fifth Am. issue, for all the reasons laid out by Prof. Kerr &others.

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.
3.27.2007 12:16am
David Walser:
I don't think its reasonable to believe that the target of the investigation is Monica Goodling.

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.
3.27.2007 12:17am
Steve:
I think Prof. Kerr and Prof. Lederman have touched upon the most likely scenario, although they are too modest to draw any firm conclusions. It works something like this:

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.
3.27.2007 12:19am
Justin (mail):
David,

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.
3.27.2007 12:25am
Tom Holsinger (mail):
Anderson,

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.
3.27.2007 12:26am
Brian G (mail) (www):
Where is the crime in what Bush or the AG did? There is none. Thus, a crime will need to be manufactured, the "perjury trap" as you noted. I don't blame her for taking the Fifth Amendment. Would anyone criminal attorney who visits this site, and I know there are thousands, tell her to not take the Fifth? If so, let me know so I never hire you.

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.
3.27.2007 12:31am
Mark Field (mail):

Hmm, Nixon was a conservative? In comparison to Humphrey I suppose?


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.....
3.27.2007 12:35am
Anderson (mail):
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.

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 ....
3.27.2007 12:37am
Anderson (mail):
Where is the crime in what Bush or the AG did? There is none.

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.
3.27.2007 12:39am
Rattan (mail):
Lucky for her only the Democrats are calling for her to testify. Republicans may have waterboarded her with isolation in Guantanomo thrown in for effect-- all without inflicting cruel and unusual punishment. She would be singing in no time due to the absence of organ failure fifth or no fifth. It would be justified because helping in firing US attorneys is an attack on the US - or may be not-- but that argument can wait for the military tribunal that deals with this enemy combatant. Lesson: do not mess with the Prez.

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.
3.27.2007 12:41am
uh_clem (mail):

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


Ok then. I'll just say "Pass the popcorn" and leave it at that.

Thanks, Prof. Kerr.
3.27.2007 12:48am
Randy R. (mail):
Steve: 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."

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.
3.27.2007 12:52am
Steve:
I don't advise my boss what to do, though (that's why he's the boss). I just brief him on the facts as I understand them. Maybe I thought I was telling the truth, or what have you. But there are only so many possibilities for how a 33-year old DOJ functionary, out of a clear blue sky, comes to believe she may be the target of a criminal investigation. It's not like the Democrats would score any appreciable points by claiming HER scalp; no one knows or cares who she is.
3.27.2007 1:10am
juris_imprudent (mail):
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.

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?
3.27.2007 1:13am
Erasmus (mail):
Why does everyone keep ignoring that REPUBLICAN SENATORS are supporting democrats in their effort to get to the truth about the US Attorney firing. Say what you will about their effort, but its bipartisan.
3.27.2007 1:27am
abbub:
Nixon was a leftist? Only if you've forgotten, or never learned about, his "impoundment" policies.
3.27.2007 1:45am
Ken Arromdee:
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".

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?
3.27.2007 1:55am
abbub:
http://www.fas.org/sgp/crs/misc/RL30240.pdf
Congressional Oversight Manual
There are three different kinds of contempt proceedings. Both the House and Senate may cite a witness for contempt under their inherent contempt power or under a statutory criminal contempt procedure. The Senate also has a third option, enforcement by means of a statutory civil contempt procedure.

(a) Inherent Contempt : Under the inherent contempt power, the individual is brought before the House
or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be
imprisoned...

(b) Statutory Criminal Contempt : ...codified today at 2 U.S.C. §§192 and 194... Prior to Watergate, no executive branch official had ever been the target of a criminal contempt proceeding. Since 1975, however, 10 cabinet-level or senior executive officials have been cited... ...The question of the duty of the U.S. Attorney under section 192 to enforce contempt of Congress citations remains unresolved and has left some uncertainty...

(c) Civil Contempt : As an alternative to both the inherent contempt power of each house and criminal contempt, a civil contempt procedure is available in the Senate. Upon application of the Senate, the federal district court issues an order to a person refusing, or threatening to refuse, to comply with a Senate subpoena. If the individual still refuses to comply, he may be tried by the court in summary proceedings...
3.27.2007 2:04am
J Thomas (mail):
So J.F. Thomas... next time some low-life drug dealer "takes the 5th," I would be justified in presuming him guilty?

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.
3.27.2007 2:31am
Christopher Cooke (mail):
Orin, last I looked at this area of the law (in a civil case when 9 witnesses claimed the 5th), it seemed that a witness could invoke the 5th for virtually any reason and that courts are very reluctant to second-guess the witness' claim of possible incrimination. So, Goodling may be safe in doing so, even if the rationale provided by her lawyer's letter is not particularly persuasive or well-grounded in the law (but ready-made, perhaps, for a sound-bite on cable tv news.)

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.
3.27.2007 2:32am
abbub:
Congressional committees have the power to compel testimony by granting immunity, but such a grant requires a two-thirds vote of the committee, so immunity is possible only if a few Republicans vote for it.
3.27.2007 2:37am
David Walser:
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.
Justin,

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?
3.27.2007 2:53am
Richard S (mail):
Would the potential "perjury trap" be avoided if the witness hedged every statement? "My memory might be playing tricks on me, but I think I said something like ' . . .'"?
3.27.2007 3:07am
David Blue (mail):
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? If so, that's not a valid basis for the privilege."

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?
3.27.2007 3:11am
Brian K (mail):
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.

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)
3.27.2007 3:28am
David Walser:
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.


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.
3.27.2007 4:04am
David Blue (mail):
Brian K, my point was a narrow one.

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.

-

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.
3.27.2007 4:07am
AlanDownunder (mail):
For the thousandth time, if there's no underlying crime why perjure yourself? And what's this about perjury traps? Telling the truth is easy; it's the lying that's hard work.

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?
3.27.2007 5:25am
Steve Talbert:

"""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.


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.
3.27.2007 5:31am
Ron Hardin (mail) (www):
The lesson a layman takes from Martha Stewart and following national cases is, never talk to a federal official about anything. Taking the 5th seems reasonable to me.
3.27.2007 6:36am
David Blue (mail):
Sorry, I spoke loosely in saying "the perjury trap". The point is 18 U.S.C. 1001.
3.27.2007 8:18am
Rodger Lodger (mail):
People v. Tyler, 46 N.Y.2d 251 (1978) holds that "perjury trap" (court uses those words) is a defense to a perjury indictment, and affirms the dismissal of the indictment on that ground.
3.27.2007 9:04am
Jeek:
The lesson a layman takes from Martha Stewart and following national cases is, never talk to a federal official about anything. Taking the 5th seems reasonable to me.

Absolutely right!
3.27.2007 9:15am
Steve:
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.

While I'm impressed by the sincerity with which you advance this "no one ever has to testify to Democrats if they don't want to" position, that's not even close to being the law. And really, it's pretty absurd to think that this 33-year old DOJ functionary faces a greater danger of trumped-up criminal charges than Karl Rove, who has already agreed to be interviewed by Congress.

At least you acknowledge it's a bad thing when partisan pressure is put on a prosecutor to indict. That's progress.
3.27.2007 9:24am
dwbh (mail):
Is it true that if Congress wants to challenge her claim to the 5th Amendment, they would have to press charges using the U.S. Attorney's office in the DC circuit? If so, shouldn't the U.S. Attorney's office in the DC circuit recuse itself due to the subject of this case?

I think the same conundrum applies to the subpoenas of Rove and Miers that were approved by Congress last week. If they simply refuse to appear, any contempt charges would have to go through the USA's DC office, no?
3.27.2007 9:38am
David Blue (mail):
"Has to" is not absolute. Nobody has to testify to anything if they are willing to pay the price of not testifying.

Given the immense jeopardy that Monica Goodling is in, she seems wise not to testify, whatever the price is. And of course she should assert any claim she can to keep the price low.

33yearprof: "Which would you rather have a short jail sentence for civil contempt. Or a FELONY conviction and longer jail sentence for violation of 18 UCS 1001?"

Exactly.
3.27.2007 9:41am
Justin (mail):
David,

As mentioned by others, had she given truthful testimony willingly, and had committed no underlying crime (and Congress lacks the authority to indict her for underlying crimes anyway), then Congress would have to waste valuable capital by going after a 33 year old Regents U cog-in-the-wheel, a terribly unlikely scenario. If her real concern was about getting unfairly prosecuted for perjury, she did just about the worst thing possible to avoid that fate.
3.27.2007 9:49am
J Thomas (mail):
David Walser said, 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.)

I can imagine this hypothetical situation arising someday. However, as a practical matter, why would anybody suppose this might be true in this particular case?

If Goodling had any sort of integrity she would have resigned years ago. If she wasn't lying for the Bush administration, why would they keep her on?

Although it hasn't been proven in court, no reasonable person could doubt at this point that the major criterion fo USA job performance was loyalty to Bush. That may not be illegal ("Serve at the pleasure of the President") but it looks very very bad to people who aren't Republicans. If it turns out that loyal USAs are expected to bring bogus charges against people they're told to and dismiss valid charges against others, that *is* illegal. Does any reasonable person seriously doubt that's the case?

She can't testify without incriminating herself or doing perjury that is likely to be proven. Bush isn't going to pardon her until the end of his term and there's a serious likelihood that before then he'll be replaced by a less sympathetic president.

What *can* she do but refuse to testify and then try to smear the other side?

We can make up hypothetical stories about how she could be innocent. We can also make up stories that maybe all the incriminating records are there because the Tooth Fairy sneaked in during the easter vacation and modified the files. The former stories do have the value of helping people notice just how vaguely the laws can be interpreted, but they don't have much to do with Goodling.
3.27.2007 9:58am
Anderson (mail):
Thousands of perfectly innocent people have been charged with crimes in this country.

Between this &the Libby trial, I'm really impressed by how many Republicans are taking a sudden, heartfelt interest in criminal-justice reform.
3.27.2007 10:04am
uh clem (mail):
33yearprof: "Which would you rather have a short jail sentence for civil contempt. Or a FELONY conviction and longer jail sentence for violation of 18 UCS 1001?"
IANAL, but that's not how I understand contempt charges to work. The jail sentence for refusing to testify is coercive, not punitive - you stay in the pokey until you agree to testify. At least that's how it worked with Judy Miller and it's how it's currently working with Josh Wolf.


Is it a different situation when you refuse to appear befor Congress than it is when you refuse to appear before a grand jury?
3.27.2007 11:31am
David Walser:
For the thousandth time, if there's no underlying crime why perjure yourself? And what's this about perjury traps? Telling the truth is easy; it's the lying that's hard work.
And for the millionth time, she doesn't have to be untruthful or have violated a crime to fear prosecution! Some people, as exemplified by several participants in this thread, assume that she must of been a criminal to have continued to work for this Administration. If so many of those who post here, who are mostly attorneys, have closed their minds to the possibility that she might be innocent, why is it unreasonable for her to fear that the Committee holds a similar attitude and that she would increase her criminal jeopardy by testifying?

I joined this thread after reading so many posts from people who seemed incapable of divining any fact pattern where it would be legitimate for Ms. Goodling to assert her 5th Amendment rights. The argument seemed to be that the 5th Amendment could not protect her from testifying before Congress because the only thing she could fear was prosecution for perjury occurring during her testimony. Others said she could not claim 5th Amendment protection unless she had actually committed a crime at the DOJ. My purpose was to point out that members of the Committee are on record that the prior testimony by the DOJ was criminal. She is being asked by the Committee to provide details about her participation in what many on the Committee (and many here) believe to have been criminal behavior. How is that testimony NOT covered by the 5th Amendment? How is this even a close call?

Note, I'm not saying I think Ms. Goodling should assert the 5th nor am I saying her having done so will in anyway help the Administration politically. I don't believe either proposition. I'm only interested in the narrow legal question raised by Professor Kerr -- can Ms. Goodling assert the 5th in this situation? Oh, and for the record, I don't think this analysis should apply to Ms. Goodling because she is a Republican. I think it should apply without regard to the party or the personalities involved.
3.27.2007 11:32am
uh clem (mail):
Formatting trouble this morning. Let's try it again, but readable this time:


33yearprof: "Which would you rather have a short jail sentence for civil contempt. Or a FELONY conviction and longer jail sentence for violation of 18 UCS 1001?"


IANAL, but that's not how I understand contempt charges to work. The jail sentence for refusing to testify is coercive, not punitive - you stay in the pokey until you agree to testify. At least that's how it worked with Judy Miller and it's how it's currently working with Josh Wolf.


Is it a different situation when you refuse to appear befor Congress than it is when you refuse to appear before a grand jury?
3.27.2007 11:34am
Justin (mail):
"And for the millionth time, she doesn't have to be untruthful or have violated a crime to fear prosecution!"

You have *no* constitutional right to avoid an indictment. Defending yourself against baseless charges, as the courts have said, is one of the "obligations of citizenship."
3.27.2007 12:10pm
Jeek:
You have *no* constitutional right to avoid an indictment. Defending yourself against baseless charges, as the courts have said, is one of the "obligations of citizenship."

Does that mean she also has an obligation to make it easy for them when they're clearly trying to set a perjury trap?
3.27.2007 12:37pm
J Thomas (mail):
And for the millionth time, she doesn't have to be untruthful or have violated a crime to fear prosecution!

Of course not. All innocent people who're under threat of prosecution fear it. I'd hope that the best solution is to face your fears and tell the truth and hope that your persecutors can't make their case. Of course, there are lapses of justice and innocent people do get convicted because of ruthless immoral prosecutors -- which is what this is all about, right? The probability that the Bush administration has been working hard to make the USAs more political and more responsive to that kind of corruption?

If so many of those who post here, who are mostly attorneys, have closed their minds to the possibility that she might be innocent, why is it unreasonable for her to fear that the Committee holds a similar attitude and that she would increase her criminal jeopardy by testifying?

You're approaching this as if you're a lawyer and she's your client. Try it some other way. If she was a stock or a used car you were considering buying, say. In terms of preponderance of evidence, would you buy a used Goodling from this President?

I joined this thread after reading so many posts from people who seemed incapable of divining any fact pattern where it would be legitimate for Ms. Goodling to assert her 5th Amendment rights.

It's totally legitimate for her to take the Fifth when she's guilty. No doubt whatsoever.

She is being asked by the Committee to provide details about her participation in what many on the Committee (and many here) believe to have been criminal behavior. How is that testimony NOT covered by the 5th Amendment?

If it actually is criminal behavior, then she is totally correct to take the 5th. If it is not illegal then at best she's making a serious tactical mistake to do that.

And she may not have the legal right -- though I don't understand how the reasoning would go. Perhaps there could be a thorough investigation, and after it's proven that she's innocent of any crimes then they prosecute her for illegally refusing to testify? The mind boggles....

What do you think about the original charges? Do you think that political pressure on USAs to prosecute cases they believe have no legal merit and pressure to ignore cases they believe ought to be tried, should be legal?

Should USAs be required to prosecute administration opponents in election years, to create the impression of illegality even though the case will be dismissed after the election?
3.27.2007 12:42pm
Mark Field (mail):

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.


That's arrant nonsense. Your judging Nixon in hindsight. Given the way issues were argued at that time, he was a conservative.


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.


I didn't mention the Cold War, and I agree that the break line there is less clear. However, Vietnam was pretty much a defining issue. In general, support for Vietnam meant you were conservative on that issue, opposition meant you were liberal on it. Anyone could, of course, be conservative or liberal on OTHER issues. Just like today, few people are fully consistent "conservatives" or "liberals" (if those terms even have any meaning). It varies from issue to issue.


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?


See above. The fact that LBJ was liberal on social issues does not mean he was liberal on Vietnam. You seem to think there are only two sides, when in fact there are as many boxes as there are issues.
3.27.2007 12:54pm
Justin (mail):
"Does that mean she also has an obligation to make it easy for them when they're clearly trying to set a perjury trap?"

Her "obligation" arises from the subpoena. The question is whether she has an excuse. Her excuse is grounded in a constitutional right.

She can't make a Fifth Amendment claim based solely on the premise that she'll be unjustifiably prosecuted. If her Fifth Amendment claim is beyond Reiner - which it would if it referred to the fear of being prosecuted for perjuring her self in front of Congress - she does not appear to have any basis to ignore the subpoena (her "perjury trap" defense, if it exists at all, would be an affirmative defense against prosecution that she could assert, after an indictment, under Rule 12(b)(3)(B)). She does not have any right not to testify due to either a) a desire not to give truthful testimony, or b) a concern that her testimony will not be considered credible.
3.27.2007 1:31pm
Richard Aubrey (mail):
Presuming the person subpoenaed by Congress works for the Bush administration, and that the committee in question is primarily democratic:
How much difference between what she tells Congress and what the FBI interviewer had time to write down on his steno pad is actionable?
Seems to me that's the source of her fear, or at least it's plausible.
3.27.2007 1:38pm
David Walser:
Allow me to respond to these separate but related comments:
You have *no* constitutional right to avoid an indictment. Defending yourself against baseless charges, as the courts have said, is one of the "obligations of citizenship."
And,
If it actually is criminal behavior, then she is totally correct to take the 5th. If it is not illegal then at best she's making a serious tactical mistake to do that.
Both these comments seem to derive from the theory that the 5th Amendment only protects one from giving testimony that is actually incriminating. I don't think that is the way the 5th Amendment works. Doesn't it also protect against being forced to give testimony that others might believe to be incriminating even though it is not?

Assume the following: The business rival of Sam Spot has been killed. Fifi Jones tells the police that she saw Sam Spot at a local night club at the time of the murder, giving Sam an alibi for the murder. If not for Fifi's account, the police would arrest Sam. They believe he's the only one with a motive. There is no physical evidence tying Sam (or anyone else) to the crime. The police and the DA think they can create a solid circumstantial case against Sam. Sam knows Fifi's account is not accurate. He believes Fifi has mistaken him for someone else. He was home, alone, at the time of the murder. Not only was he alone, he was not committing any other crime at the time of the murder.

Does this mean Sam cannot invoke his 5th Amendment rights and decline to tell the police where he was at the time of the murder? His truthful testimony will not incriminate him. How can it? He is guilty of no crime. However, his truthful testimony would destroy the alibi provided by Fifi and that would tend to incriminate him in the eyes of the police and the DA. My position is that the 5th Amendment protects both the innocent and the guilty from testimony that others might find incriminating against them. If I have this basic constitutional principle wrong, I'd like someone to point me to an authority on the topic. I may be wrong. I hope not. The notion that the 5th Amendment protects only the guilty offends my sense of justice. It might be Sam's civic duty to fight these baseless charges. That's not my question. My question is it his constitutional obligation to testify in a way that makes him subject to baseless charges?
3.27.2007 1:41pm
Gary McGath (www):
Without having much knowledge of the situation, my inclination is to take it straightforwardly: She's done something illegal and doesn't want to talk about it.
3.27.2007 1:54pm
Justin (mail):
"Both these comments seem to derive from the theory that the 5th Amendment only protects one from giving testimony that is actually incriminating."

Mine does not. To get to my position, you have to also add in the fact that Reiner (and even Kastiger) would not protect her from criminal activity *at* or *after* testimonly - including the perjury. Even then, I was only addressing Dowd's argument on page 2-3 of his letter - that Goodling has a 5th Amendment right to avoid testifying due to fear of subsequently being charged for perjury committed during that testimony.

If the concern is that she may have violated SOX or suborned perjury previously, or that her statements might give rise to such a charge, that is a different story and the 5th Amendment might very well apply, pending a grant of Kastiger immunity.
3.27.2007 2:14pm
Justin (mail):
And I think this waltz has gone on long enough, David. I mentioned way back in my first reply to you that you were ignoring the actual question - that is, whether a Fifth Amendment right can apply to the concurrant act of testifying. None of your arguments, hypotheticals, or slippery slopes really touch on that, and thus do not provide any useful application to this case.

I agree that if she has an objectively reasonable fear of prosecution, due to her testimony, which is based on allegedly criminal activity committed *prior* to her testimony, she would have a Fifth Amendment right, which could be summarily defeated by granting her Kastiger immunity. Will that suffice?
3.27.2007 2:18pm
David Walser:
What do you think about the original charges? Do you think that political pressure on USAs to prosecute cases they believe have no legal merit and pressure to ignore cases they believe ought to be tried, should be legal?

Should USAs be required to prosecute administration opponents in election years, to create the impression of illegality even though the case will be dismissed after the election?
I think USAs should be required to follow the public policy set by the AG (as directed by the President). I felt that way when Janet Reno was AG and Bill Clinton was President. I still feel that way -- even though I'm not particularly fond of the current AG or his policies.

Do I think an Administration should use the prosecutorial power for political purposes (a la Walsh)? No. Do I think it happens? At times, yes. Do I think it happened here? No, not based on the record we have before us. Is there reason to be concerned that it might have happened? Yes. Some, including some of those who were replaced, have made that claim. However, a similar claim was made that the Administration interfered with the tobacco RICO case. That claim appears to have been unfounded.

In the current situation, I don't think the charges, in actually, will amount to much. The worst case appears to be that in New Mexico. There, the Republican Senator and others tried to put pressure on the DOJ to speed up the investigation into alleged wrong doing by Democrats. IIRC, the important thing to note is that it appears the DOJ ignored this pressure. No charges were brought before the election. The USA in question did not ignore demands from DOJ that charges be brought because such a demand was never made. Did the Senator's complaints about the USA have anything to do with his being replaced? I doubt it's ever good to be on the bad side of Senator when such decisions are being made. It would not be the first time an Administration had listened to a US Senator in such matters. One USA was replaced simply so a Senator could reward someone with the appointment. Being replaced because you've earned the ire of your state's Congressional delegation is not unheard of and should not rise to the level of scandal.
3.27.2007 2:20pm
David Walser:
I agree that if she has an objectively reasonable fear of prosecution, due to her testimony, which is based on allegedly criminal activity committed *prior* to her testimony, she would have a Fifth Amendment right, which could be summarily defeated by granting her Kastiger immunity. Will that suffice?
Justin,

Yes, that will suffice. It appears we were talking past each other. I apologize for my part in that.
3.27.2007 2:24pm
Thorley Winston (mail) (www):
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.


Please correct me if I’m wrong but if someone decides to invoke their Fifth Amendment privilege against self-incrimination, do they have to give any reason other than “for fear I may incriminate myself?” It seems to me that going into detail as to what one fears could be “incriminating” is itself incriminating. Goodling’s attorney (or whoever drafted the letter) did a pretty good job of explaining why his client has reason to believe that some of the members of the committee have already made up their minds and are in a political witch hunt. Putting those reasons in a letter that was released to the public helps to mitigate any PR fallout for her future and for the administration as to why she refused to testify.

FTR: I think the US Attorney “firings” is much ado about nothing even though I feel no sense of loyalty to the administration or any members of Congress. IMO the Dems after having worked themselves into a near sexual frenzy over Fitzmas only to find themselves waking up alone the next morning without so much as cab fare on the nightstand are on a witch hunt and this woman has decided not to give them any matches. If they want her testimony, they can grant her immunity. Otherwise, she’s just opening herself up to being a collateral target on Chuck Schumer’s jihad against the administration.
3.27.2007 2:49pm
htom (mail):
My reaction when I heard this story was "Finally!"

"Truth" is a slippery beast. What I know to be true, and what you know to be true, are two different things. If we're both sworn and testify to our two different truths, that does not mean that either of us has knowingly lied. A third person, with a third truth, could also testify truthfully, contradicting both of us. Five more appear, all agreeing with the second "truth"; that still doesn't mean that the first and third didn't testify truthfully. And it doesn't mean that the six know the "real truth"; they may all be blind and holding the elephant's tail.

In today's legal system, though, this little bit of reality doesn't seem to get much attention.

So I -hope- she has a right not to testify in such circumstances; whether she does or not, she is already in legal trouble, and it's her decision as to whether she will be in more or less trouble by testifying.
3.27.2007 3:23pm
33yearprof (mail):
The problem with 18 USC 1001 is that "knowingly and willfully" modifies "makes" the statement. It does NOT modify the "false" nature of the material contained in the statement. That's the Catch 22 in the statute and why Goodling can properly take the Fifth. She is going to "willfully and knowingly" make a statement to the Congress which she may not "willfully and knowingly" believe to be untrue. If so, she is prosecutable IF they think it is false and she should have known that.

Compare a hypothetical law that says: whoever makes any material statement or representation willfully and knowingly false, fictitious, or fraudulent shall be fined ... .
3.27.2007 3:52pm
Christopher Cooke (mail):
I think, for Ms. Goodling to invoke the 5th, she need only show that her testimony before Congress might provide a "link" in a chain of facts that could led to her prosecution. That is a very slight showing.

So, for example, requiring Ms. Goodling to admit she met with or supplied information to McNulty, before he incorrectly briefed the Congress about the reasons for the USAO firings, might be such an evidentiary "link" sufficient to warrant her ability to properly invoke the 5th Amendment. Her attorney could cite to the 18 USC 1001 (false statements) statute, or the one someone cited above about providing false information to Congress, or even possibly a witness tampering statute, and say she is concerned that testimony before Congress might compel her to admit to facts that could link her to alleged violations of these statutes and that could form the basis for a criminal referral or prosecution. Certainly, it might be embarrassing for a DOJ official to make this argument (which is why her attorney likes the "its a partisan witch-hunt theme" better), but this is an argument one could make in a legal brief justifying Ms. Goodling's invocation of the 5th Amendment.

As for Nixon, I think he should have been the NFL Commissioner instead of President. He would have been happier.
3.27.2007 3:59pm
John Burgess (mail) (www):
I guess it's a generational thing or something, but I don't recall the automatic presumption of guilt--at least by the general public--when various Hollywood types pled the Fifth in the face of persecution by the House Un-American Activities Committee.

I'm sure many did, but more did not. Instead, they saw a witch hunt for what it was. Has the legal interpretation of the Fifth Amendment changed since the 50s?
3.27.2007 4:14pm
Jeek:
I don't recall the automatic presumption of guilt--at least by the general public--when various Hollywood types pled the Fifth in the face of persecution by the House Un-American Activities Committee.

Bah, everyone knew they were a bunch of pinkos, so it was no surprise they wanted to take the 5th.
3.27.2007 4:51pm
Linda (mail):
I have my own theory. She doesn't remember a lot of the things she knows they're going to ask her about, because she was using illegal drugs that tend to reduce long term memory. In order to truthfully testify as to why she doesn't remember, which she feels likely will be asked, she'd have to admit to the illegal drug use.
3.27.2007 5:46pm
K:
'various Hollywood types....Fifth'

I think you will find that few did that. The big story from the hearings was that a group of witnesses would neither answer OR take the Fifth.

They chose instead to appear and denounce the hearings and generally disrupt the proceedings.

HUAC achieved little or nothing in chasing Commies. But it can be convenient to forget that the left backed HUAC totally during investigations of Nazi influence and sympathies years earlier.

Most of the damage to left-leaning artists was done when networks and studios refused to employee them.

I recommend the Woody Allen film 'The Front' about the era.
3.27.2007 6:02pm
Tom Holsinger (mail):
The most recent posts of 33yearprof and Christopher Cooke above have zeroed in on Goodling's 18 USC 1001 problem - anything she says under oath before Congress about her past statements can be used as evidence against her in a prosecution for 18 USC 1001 based on those past statements.

It doesn't matter whether she would be found innocent at trial. Her life can be screwed up paying off horrendous legal bills defending an unfounded prosecution, which can occur even if she gives immunized testimony. Oliver North gave immunized testimony to Congress and was prosecuted anyway - I believe he was convicted and his conviction overturned. North still had to pay his defense fees.

Also see what Mona Lynde has to say on this subject (link found on Instapundit):

Asserting The Fifth Amendment Privilege

J osh Marshall asks his lawyer-readers to opine on whether Monica Goodling is stating a valid basis for invoking the Fifth Amendment privilege in response to a subpoena by the Senate Judiciary Committee.

The answer: Yes, rather clearly so, unless there is no reasonable scenario under which she fears that a prosecutor could take something she says before the committee as a link in a chain leading to evidence of wrongdoing. (Hoffman v. United States, 341 U.S. 479, 486 (1951).)

The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).) "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." (Slochower v. Bd. of Higher Ed. of the City of New York, 350 U.S. 551, 557-58 (1956).)

A careful defense lawyer would be especially justified in advising his or her client to consider taking the Fifth in a highly charged political environment such as the Senate Judiciary Committee's investigation into the firings of U.S. Attorneys and the alleged minimization (dare we say "cover-up?") of the role of the Attorney General and the White House in those firings. It is important to remember that "a witness innocent of wrongdoing may well refuse to answer a question not because he fears conviction, but because he fears unfounded prosecution, a risk which every one runs at all times, theoretically at least." (Lewis Mayers, Shall We Amend the Fifth Amendment? 4 (New York: Harper &Brothers, 1959).)

The Akin Gump attorney probably did not need to broadcast his attack on the fairness of the atmosphere in the Judiciary Committee as he did; that does indeed smack of politics. But that doesn't mean that the advice he has given his client is bad. It is not. It is of course possible that the invocation of the Fifth is in bad faith, and that neither Ms. Goodling nor her attorney has any basis at all to fear her eventual prosecution, either for perjury, for making false statements, for obstruction of justice, or some other crime. But that strikes me as quite unlikely.

I understand and share the disgust over the firing of these U.S. Attorneys, over the politicization of the institution of the United States Attorney's Office in this administration and the elevation of political loyalty as a value, and over the White House's and the Attorney General's efforts to "manage" the crisis. But that's no reason to ditch the important values that the Fifth Amendment privilege serves.

UPDATE: When I wrote this post, I had not yet gone over to Volokh to see Orin Kerr's take on the subject, which contradicts mine. At bottom, Orin can't fathom a crime that Goodling might have committed (or might be characterized by an overzealous prosecutor as having committed). I think Orin's not being imaginative enough.

Has Ms. Goodling ever been interviewed about the matter, or has one of her co-workers? If she or another has, wouldn't a charge under the federal false statement statute be possible? What if evidence turns up that DOJ fired a prosecutor specifically to derail a pending investigation or prosecution? Is a prosecution for obstruction of justice so completely out of the question that the lawyer at Akin Gump ought to tell Ms. Goodling that she's completely in the clear?

3.27.2007 6:05pm
Justin (mail):
The problem with 18 USC 1001 is that "knowingly and willfully" modifies "makes" the statement. It does NOT modify the "false" nature of the material contained in the statement. That's the Catch 22 in the statute and why Goodling can properly take the Fifth. She is going to "willfully and knowingly" make a statement to the Congress which she may not "willfully and knowingly" believe to be untrue. If so, she is prosecutable IF they think it is false and she should have known that.

Professor, I know this is not your area of expertise, but I can assure you that what you've just said:

1) If true, would render all subpoenas anywhere worthless

2) Is not true.

Once again, as mentioned by *many* people on this thread, and regardless of what you think should be the law, you cannot invoke the 5th Amendment to protect yourself against perjury (or any other crime) that you commit either contemporaneously or prospectively.
3.27.2007 6:06pm
Justin (mail):
"It doesn't matter whether she would be found innocent at trial. Her life can be screwed up paying off horrendous legal bills defending an unfounded prosecution, which can occur even if she gives immunized testimony."

Tom, leaving aside the factual merits of your argument, it bears repeating that you do not have a constitutional right not to be indicted. The costs of defending an indictment is an obligation of citizenship. If she doesn't have a 5th Amendment right to protect herself against the specific behavior, then it doesn't matter if she gets indicted afterwards, even if its for bogus or constitutionally protected behavior. Her recourse is the recourse of everyone else - Rule 12.

The only question is whether she has a 5th amendment protection. The answer is obvious. Short of obtaining Kastiger immunity, she may invoke the 5th amendment if she has an 1) objectively reasonable beilef, that 2) her testimony will be used either a) in chief or b) derivatively 3) in a prosecution 4) for behavior that is antecedent to the testimony.
3.27.2007 6:12pm
Tom Holsinger (mail):
Justin,

Goodling doesn't have to be interviewed by investigators. She herself is a person to whom material false statements can be made which can give rise to 18 USC 1001 liability - "... whoever, in any matter within the jurisdiction of the executive ..."

I.e., merely talking with colleagues at her own level, and her superiors, about the fuss over the firings of U.S. Attorneys, and in particular about what private statements they should to the President about it (not merely public statements to Congress), can give rise to 18 USC 1001 liability.

So there is no question that her potential liability concerns "behavior that is antecedent to the testimony" (her prospective testimony to Congress under subpena).
3.27.2007 6:32pm
bittern (mail):

And it doesn't mean that the six know the "real truth"; they may all be blind and holding the elephant's tail.

In today's legal system, though, this little bit of reality doesn't seem to get much attention.

So I -hope- she has a right not to testify in such circumstances

Yes, I too am hoping we can eliminate this testimony business entirely -- but of course only in those cases where I think there might be multiple perspectives to trip those poor people up. //


FTR: I think the US Attorney “firings” is much ado about nothing

Yes, Thorley Winston, of course you think that. As a frequent lurker, I know that already. //


And what's this about perjury traps?

I know that's been asked several times. But I have a very short attention span, so if it was answered in the middle of a long response, I'm afraid I missed it. An elementary explanation of how such a trap works, please?

bittern
3.27.2007 6:55pm
Justin (mail):
Tom,

Professor Olson's argument was that:

She is going to "willfully and knowingly" make a statement to the Congress which she may not "willfully and knowingly" believe to be untrue. If so, she is prosecutable IF they think it is false and she should have known that.

I was responding to that, and I have bolded the relevant parts. Professor Olsen's actions clearly indicated, incorrectly, that she has a 5th Amendment right not to testify in front of Congress out of a concern that she will perjure herself, with perjure being defined in the legal realist sense and in consideration of Reiner.
3.27.2007 6:57pm
Justin (mail):
bittern,

A perjury trap is where someone is called to give sworn testimony for no legitimate reason other than to catch the subject in a lie and prosecute them. It is certainly a (non-affirmative) defense to a perjury conviction that one did not lie about anything material - the most obvious way of defeating a perjury trap. In some jurisdictions, a defendant claiming perjury trap is given (I'd assume an additional) affirmative defense on the issue.

But in no case has it ever been ruled that a perjury trap leads to a 5th Amendment right, or any other right not to testify. It simply gives you a right to defeat the indictment and avoid conviction.
3.27.2007 7:01pm
Tom Holsinger (mail):
Justin,

You keep talking about Goodling's potential liability for prospective statements to Congress. I've talked solely about her potential liability for her past statements to her colleagues, with her prospective testimony to Congress merely being evidence of the falsity, and known falsity, of her past statements to her colleagues. Are you addressing someone else's posts in the mistaken impression that I made them?

"I.e., merely talking with colleagues at her own level, and her superiors, about the fuss over the firings of U.S. Attorneys, and in particular about what private statements they should [give] to the President about it (not merely public statements to Congress), can give rise to 18 USC 1001 liability.

So there is no question that her potential liability concerns "behavior that is antecedent to the testimony" (her prospective testimony to Congress under subpena).

3.27.2007 7:13pm
J Thomas (mail):
I am not a lawyer, and I am utterly confused by some of the lawyerly reasoning here. I hope someone will be kind and answer some simple questions about it.

When someone claims the 5th in a legal case, does a court look at evidence at that point and decide whether to allow them to take the 5th amendment or else compel them to testify? And if they are allowed the 5th they get no penalty for taking it, but if they aren't allowed it and they don't talk they get punished for not talking?

Or is it a later thing? After the evidence is in and the various criminals have been sorted out, do they then decide whether she was one of the criminals, and if she was a criminal then she was right not to testify but if she was innocent then she gets punished for not testifying?

Or does anybody get to take the 5th any time they want to, and the courts decide about their guilt or innocence and how much to punish them independent of what they have to say about it?

When Goodling makes the argument that her persecutors are biased against her and will persecute her wrongly if she talks to them, will anybody decide on that? It occurs to me that it would be extremely good news for Bush if some authority rules that she is completely correct to believe that this investigation is utterly biased and unfair and unjust and will not reveal any truth.

On the other hand, can any paranoid person refuse to testify about anything whatsoever because he believes on no evidence at all that the prosecutor is biased?

IANAL, but my instinct when I am innocent has always been to tell the truth. Lie, and your lies will interact with everybody else's lies in unpredictable ways. So if somebody offers you an alibi that you didn't ask them for, because they thought they saw you when they actually saw somebody else, if you depend on it there's a chance they'll later change their mind. "I'm sorry, I wanted to protect him so I lied about it." That's not going to help you one little bit. Let people lie for you and if those lies get found out they're going to be your lies.

Of course, this all might be naive on my part. I've never been accused of anything serious. Maybe lawyers who know how often their guilty client gets completely exxonerated while some innocent shmuck gets punished have a very different perspective. I'd welcome some data about that too. Something along the lines of "90% of my clients are guilty, and I get most of them off and then the police usually go after somebody else and get him jailed" would be quite enlightening.
3.27.2007 7:24pm
David Walser:
bittern,

Justin gave a good definition of a perjury trap, allow me to give a recent example of what many believe was a perjury trap (without intending to endorse that view): According to this view, Libby was subject to a perjury trap set by Patrick Fitzgerald. Soon after his appointment as Special Counsel, Fitzgerald learned that the original source for Novak's column was Richard Armitage. He also determined that Armitage had not committed a crime in giving Novak information about Valerie Plame's employment. At about this time, he sought expanded authority to cover "process crimes" discovered during his investigation. That is, Fitzgerald sought and was granted authority to investigate not just the "possibly criminal disclosure of Valerie Plame's identity", but obstruction of justice and perjury. He then subjected Libby to two FBI interviews and eight hours in front of the grand jury. What was the purpose of these interviews? He was not investigating who had disclosed Plame's identity nor whether there was a crime committed in connection with that disclosure. He already had answers to those questions. He wasn't investigating anything. Instead, he was looking to punish someone for conduct that he found lawful but offensive -- pushing back against Ambassador Wilson by the Administration. If you subscribe to this view, Fitzgerald interviewed Libby in front of the grand jury under the false premise that he was looking for the leaker. Libby, believing he had nothing to hide (he had broken no law and had not unlawfully disclosed classified information), testified for eight hours in front of the grand jury. How many people could be questioned by an experienced prosecutor for hours on end and not say something that could be construed to be false or misleading? If that's what happened (and there are lots of reasons not to accept that it did happen), Libby was put in a manifestly unfair position. Forbidden from using his 5th Amendment protection, Libby literally talked himself into jail.

A perjury trap is a lot like entrapment, a crime that only exists because the government willed it into existence. For this reason, we don't normally allow prosecutors to question people under penalty of perjury unless there is a legitimate reason to do so. Allowing prosecutors to conduct interviews for the sole intent and purpose of obtaining testimony that can be made to look like perjury puts too much power into their hands.
3.27.2007 7:53pm
David Walser:
When someone claims the 5th in a legal case, does a court look at evidence at that point and decide whether to allow them to take the 5th amendment or else compel them to testify? And if they are allowed the 5th they get no penalty for taking it, but if they aren't allowed it and they don't talk they get punished for not talking?
The way this works is the judge rules whether or not the 5th Amendment applies to the particular question being asked. (For testimony given to Congress, there are several steps before getting the issue before a judge.) If the judge determines the testimony is not protected by the 5th Amendment, the individual must answer the question or risk going to jail for contempt. If the individual is convicted, he or she may appeal on the ground that the testimony was used unconstitutionally to convict them. If the appellate court agrees, the conviction will be overturned. (This is what happened to Ollie North. His testimony to Congress, given under a grant of immunity, was used to convict him. The conviction was overturned.) As a general rule, the courts are loathe to rule that someone must answer a question after asserting 5th Amendment protection.

I'm not aware of any penalty that can be applied if the judge incorrectly determines the 5th Amendment protects the individual from testifying. The person made a claim of protection under the 5th Amendment and the judge agreed. Unless the individual lied to persuade the judge the 5th Amendment applied, I don't see what possible charge could be brought against the individual for the judge's error.
3.27.2007 8:09pm
Justin (mail):
Tom,

I think you need to stop interpreting my arguments so broadly and then trying to cut them down as straw men. I have never directly addressed any of your arguments, only your defense of Professor Olson's arguments, so that your (different) argument stands against my attack on Professor Olson's argument does nothing to my argument. I think that neither Mueller's guest poster or Kerr has it exactly right - the test is whether an objectively reasonable person would believe they would open themselves up to prosecution based on past events, not whether Goodling may subjectively believe that, or having anything to do with committing perjury.

David,

I obviously disagree with your characterization of Libby's prosecution, but that's a discussion that is both a waste of time and off topic. I'll just point out that Patrick Fitzgerald is a Republican, and was asked by this administration to run for Senate in the state of Illinois. So you can cry partisan perjury trap as much as you would like on that one, but I do not think you will convince anyone who does not already agree with you.
3.27.2007 8:32pm
Tom Holsinger (mail):
Justin,

You said, "I have never directly addressed any of your arguments, only your defense of Professor Olson's arguments..."

I never, ever, addressed Professor Olson's arguments. I did say, however, "Are you addressing someone else's posts in the mistaken impression that I made them?"

Perhaps if you read what people actually said, as opposed to what you think they said, you might have a better understanding of Ms. Goodling's fears concerning her potential liability under 18 U.S.C. 1001.
3.27.2007 9:04pm
Christopher Cooke (mail):
Justin

Assume the following set of facts:

1. Ms. Goodling testifies truthfully to Congress.

2. During her Congressional testimony, she is asked "what did you tell McNulty about White House involvement in the firing of the 8 USAOs, to help him prepare for his appearance before Congress?"

3. She responds, truthfully (to Congress) "I told McNulty that, after checking with the White House, I found that Rove and Miers had no involvement whatsoever in these firings."

4. Her statement to McNulty appears to have been false when she made it to him, because it appears to be contradicted by emails sent to her and from her with Rove/Miers et al at the White House soliciting their views on how should be fired, why, and how they will explain this.

Hasn't Ms. Goodling possibly incriminated herself before Congress, by admitting potentially to a past crime?

If you agree with me, then you can see why it is okay for her to take the 5th. By the way, I think my hypo is not too far from what the facts may turn out to be.

As for the "perjury trap" described above regarding Fitzgerald, it is not based on the facts that came out at Libby's trial and is a false dilemma, in any event, because Libby could have taken the 5th before Fitzgerald's grand jury and/or during his FBI interviews. One little tidbit from the trial, from David Addington, was that Libby was so concerned about whether he had violated the Intelligence Identities Protection Act that he asked Addington about the statute, and Addington gave him a copy of it. That is why Libby then lied to Fitzgerald, the FBI and the Grand Jury, i.e., he thought he had violated the statute by disclosing Plame's status as a CIA agent to the press, so he instead claimed that Russert and other press members told him about the identity first (which would mean no statutory violation). The irony is tha Libby didn't do enough research on the s
3.27.2007 9:12pm
Christopher Cooke (mail):
Sorry, cut off:

If Libby had researched the statute more thoroughly, he would have discovered that he could only have been convicted of violating it if he (1) knew Plame was a covert agent (2) learned that information from a classified source (3) was not authorized to disclose it to anyone. My understanding is that Libby didn't know Plame was covert, just that she worked at the CIA, and that he may have been authorized by Cheney to disclose her identity, which meant no violations.
3.27.2007 9:14pm
David Walser:
Look, I'm sorry I brought up the Libby case as an example of what many of his supporters believe was a perjury trap. When I said I did not intend to endorse the view it was a perjury trap, I meant it. I don't think it was a perjury trap. I do think it is a practical example of why people are offended by the notion of a prosecutor questioning people under oath without a "real" reason for doing so. The old saying is a prosecutor can get a grand jury to indict a ham sandwich. A corollary should be, a prosecutor can make a saint look like an liar if allowed to question him long enough.
3.27.2007 9:32pm
Justin (mail):
Tom,

Please read the chain of email comments again. The first time I mention 18 USC 1001 is in response to Professor Olsen's comments. You respond to those, quoting my argument in part, with an argument that was irrelevant to my response to Professor Olsen's comments. I think that's where any mistake has been made.

Christopher Cooke,

For the last time, I am not responding to the argument that she can take the 5th because of an objectively reasonable (and I am not making any prognosis as to whether she would have such a fear) fear of prosecution of past behavior. I am only responding to the arguments made by Dowd in pages 2 and 3 of his letter - that her current testimony can be used against her. Please see my post of 3.26.2007 6:57pm and the immediate posts thereafter by myself.

As far as Libby, I don't know how many different ways I can say this - I am not going to get into a discussion about Libby on this thread. Needless to say, as Libby did not take the 5th, his case is irrelevant to any of these issues.
3.27.2007 9:36pm
J Thomas (mail):
The way this works is the judge rules whether or not the 5th Amendment applies to the particular question being asked. (For testimony given to Congress, there are several steps before getting the issue before a judge.) If the judge determines the testimony is not protected by the 5th Amendment, the individual must answer the question or risk going to jail for contempt. If the individual is convicted, he or she may appeal on the ground that the testimony was used unconstitutionally to convict them. If the appellate court agrees, the conviction will be overturned.

Thank you, David Walser, and thank you for your patience. I'd like to ask in a little more detail, of anyone who has the answers --

Let me see if I have this right. Say you're a witness in somebody else's trial, and you've been answering questions, and then they ask you a question you don't want to answer. And you take the 5th. Then the judge rules whether or not you have to answer. If he says you don't then they go on to the next quesiton. If he says you do have to and you don't, then he can punish you for that.

And if he says you have to answer and you do, and it does turn out to be something incriminating, they can't use your testimony in your own later trial. Everybody's supposed to pretend they didn't know you confessed. And if they do convict you on other evidence you can appeal on the claim that making you tell about it helped them too much? Like, even though they have evidence apart from your confession, it could have been the details of your confession that helped them get that evidence?

Is that it?

And then taking the 5th in front of Congress is completely different, to the point that you can take the 5th about every single question before they've even asked you any questions, and if you do it about a specific question there are multiple steps to go through before a judge decides whether or not you have to answer?
3.27.2007 10:15pm
Mark in Texas (mail):
There seems to be a popular opinion among the commentors on this thread that the public will perceive Taking the Fifth as an admission of guilt. That might well have been true several years ago before Martha Stewart went to prison for a reason that nobody without a law degree can understand, before Mike Nifong began his inquisition against three random lacrosse players at Duke University and before Louis Libby was convicted for having a different recollection of a long ago conversation than Tim Russert.

Also keep in mind that the court trial that most laymen are familiar with was the OJ Simpson trial where the murderer went free but Mark Furman was convicted of a felony for his testimony. Most recently, anybody who turned on a TV has not been able to escape the Anna Nicole Smith courtroom circus with the weeping judge being replaced by the less capricious judge who was caught smoking pot in the park outside the court room.

Perhaps those who are familiar with our legal system think that it unfair that so many of us laymen have been convinced by the media that our legal system is unjust, erratic and dangerous, but to a non lawyer Taking the Fifth seems like the only reasonable thing to do when in her situation.
3.28.2007 3:21am
walt61:
I am not a lawyer, but I am amazed that so many people on this thread think that all you need do is tell the truth and you will be OK. As an extreme example, how many innocent people have been convicted and later freed by DNA evidence.

It is also true that just because Libby was convicted, it does not rule out that he was telling the truth as best he remembered it. Someday we may learn that Tim Russert was told about Plame by David Gregory and/or Andrea Mitchell.

As to why Fitzgerald went after Libby after he knew about Amitage, just google Libby and Mark Rich.
3.28.2007 4:58am
J Thomas (mail):
Perhaps those who are familiar with our legal system think that it unfair that so many of us laymen have been convinced by the media that our legal system is unjust, erratic and dangerous, but to a non lawyer Taking the Fifth seems like the only reasonable thing to do when in her situation.

It depends. Put it this way -- When you take the fifth you not only appear to admit guilt, but also you give up the right to tell your side of it.

It seems like a complex tactical legal choice when to do that. When you think there's no real evidence, and that you're likely to say something that will provide evidence of guilt, then it makes sense to shut up. But on the face of it, isn't it peculiar to think you'll be better off if the other side says just what they think happened and you never get around to saying what you actually did?
3.28.2007 5:32am
J Thomas (mail):
I am not a lawyer, but I am amazed that so many people on this thread think that all you need do is tell the truth and you will be OK. As an extreme example, how many innocent people have been convicted and later freed by DNA evidence.

Walt61, how many of the men convicted of crimes where DNA evidence mattered, made more than $30,000 a year in 2006 dollars? Nobody has any illusion that poor people get justice.
3.28.2007 5:34am
Jeek:
I am not a lawyer, but I am amazed that so many people on this thread think that all you need do is tell the truth and you will be OK.

Not just this, but they think that if you tell the truth in a politically charged situation where "truth" is beside the point and people are out to get you for partisan reasons and you'll be OK.

Astonishing.

When you take the fifth you not only appear to admit guilt, but also you give up the right to tell your side of it.

Yeah, like "her side" would actually be heard and would matter. A junior DOJ official vs. a bunch of Senators, gee, who is going to speak loudest and have the last word there?

Better to keep your mouth shut than to try to tell "your side" and just give them more ammunition to shoot you with.
3.28.2007 9:08am
J Thomas (mail):
Jeek, aren't there a bunch of Republican senators there to support her and repeat her talking points? Has the issue turned so partisan that the Republicans will try to get her too?
3.28.2007 9:15am
David Blue (mail):
J Thomas: "Jeek, aren't there a bunch of Republican senators there to support her and repeat her talking points? Has the issue turned so partisan that the Republicans will try to get her too?"

J Thomas, I think it's more a question of Monica Goodling being "little people," comparatively speaking. She's not a friend of George. She won't be protected or pardoned no matter what injustice is done to her.

Morally, I think the "underlying crime," if there is one, is happening now.

I could easily see another "Scooter" Libby verdict, with members of the jury doing their best to do their duty according to law but hoping (in vain) for clemency, and reasonably believing that the wrong person was put on trial.

-

Jeek: "Yeah, like "her side" would actually be heard and would matter. A junior DOJ official vs. a bunch of Senators, gee, who is going to speak loudest and have the last word there?

Better to keep your mouth shut than to try to tell "your side" and just give them more ammunition to shoot you with."

My opinion is the same.
3.28.2007 10:36am
Jeek:
Jeek, aren't there a bunch of Republican senators there to support her and repeat her talking points? Has the issue turned so partisan that the Republicans will try to get her too?

As Goodling, I would regard these as weak reeds indeed, and certainly not something I would trust to keep me from being prosecuted from partisan spite. I would expect the Republicans to distance themselves from the administration, not jump in as my stalwart defenders.
3.28.2007 10:39am
J Thomas (mail):
I think it's more a question of Monica Goodling being "little people," comparatively speaking. She's not a friend of George. She won't be protected or pardoned no matter what injustice is done to her.

So she's important enough for the partisan Democrats to try want to persecute her, but not important enough for partisan Republicans to defend her.

What's wrong with this picture?

Is the GOP is giving up on Bush?

The big picture here is that the Democrats are focusing on the Justice Department first instead of any of the juicier scandals because they want to establish that the Justice Department will be allowed to prosecute.

They aren't talking about it much, but they're heading for impeachment for first Cheney and then Bush. And if Republican senators aren't working to stop them, what does that say?

So what does Goodling have to lose by testifying? Libby got prosecuted because he chose to be the fall guy, he refused to testify against Rove etc. All Goodling has to do is tell the truth and they'll go after bigger fish. It's only if she refuses to tattle that they might want to punish her.
3.28.2007 11:10am
Jeek:
Is the GOP is giving up on Bush?

They'd be stupid not to. The Democrats will try to saddle every Republican candidate in 2008 with the Bush stigma, and every (smart) Republican will distance himself as much as possible from this failed, incompetent administration.

They aren't talking about it much, but they're heading for impeachment for first Cheney and then Bush. And if Republican senators aren't working to stop them, what does that say?

Letting Goodling twist in the wind is a very different thing from working to stop the impeachment of Bush and Cheney.

So what does Goodling have to lose by testifying?

Potentially, a whole lot of money and time. Why take the chance? How can she know beforehand exactly what "truth" will satisfy the Democrats?
3.28.2007 11:41am
Thorley Winston (mail) (www):


So what does Goodling have to lose by testifying?


Wrong question, what does she have to gain by testifying before people who have already made up their minds about what happened and are only looking for ammunition against the administration? There’s no upside to her testifying and refusing to play their game by taking the Fifth may be the least awful way of making sure that she doesn’t become collateral damage in Schumer &Co’s quest to take down the administration.
3.28.2007 12:19pm
J Thomas (mail):
By declaring that she's doing it because she thinks they're going to be unjust, she declares herself firmly on Bush's side. Will he be able to reward her for that? Will he bother?

Again, the Democrats don't have to prove anything important about past wrongdoing in the Justice Department. They only have to prevent future investigations from being blocked. Getting rid of Gonzales is a plus but not completely necessary. It works about as well, maybe better, if Gonzales stays on but is utterly discredited and unable to block investigations.

And she serves them almost as well by taking the Fifth (which tells the entire non-lawyer US population that she's guilty) as she would by lying and getting caught.

It isn't really any big deal. We can speculate about how she might feel if she was actually innocent, but would any reasonable person consider that plausible at this point? Hardly.
3.28.2007 1:25pm
Edward A. Hoffman (mail):
Answering J Thomas, Jeek wrote:
So what does Goodling have to lose by testifying?
Potentially, a whole lot of money and time. Why take the chance?
How about because she's been subpoenaed and is thus legally required to testify? A subpoena isn't a social invitation you can turn down if you disagree with the politics of those who sent it. Fear of being treated unfairly for telling the truth is not sufficient reason to invoke the Fifth Amendment.
3.28.2007 2:52pm
Jeek:
How about because she's been subpoenaed and is thus legally required to testify?

Maybe so but it is difficult to respect the "legal requirement" to participate against your will in a partisan charade.

The calculation for her is clear: since the penalty for perjury and the chance of being tried for perjury are far greater than the penalty for contempt of Congress and the chance of actully being penalized for same, she should not testify (under oath, anyway).
3.28.2007 3:05pm
J Thomas (mail):
Jeek, you are clearly correct. Since they almost certainly have evidence already, her other choices are to confess or face a nearly 100% chance of conviction for perjury.

And presumably she won't confess even if she gets immunity -- because she's a Bush partisan, as proven by her claim that she's taking the fifth because she fears partisan democrats. She wouldn't insult the senators unless she expected Bush to protect her.
3.28.2007 3:25pm
Edward A. Hoffman (mail):
Jeek wrote:
Maybe so but it is difficult to respect the "legal requirement" to participate against your will in a partisan charade.
Oh, please. Are you saying Congress should just take Gonzalez at his word about what happened? Even after it turned out his earlier explanations weren't entirely truthful? And even though he's basically saying he didn't know his own top people were being sacked? At a minimum there is a strong appearance of impropriety. Congress rightfully wants to know if there was more than just the appearance. The fact that the Republicans just rolled over for the administration when they were in charge does not turn less compliant Democrats into partisan thugs.

You and Ms. Goodling obviously doubt that the investigation will be fair. Maybe you'll be proven right. But do you think witnesses should be free to derail an investigation whenever the panel isn't stacked in their favor?

Suppose I get subpoenaed by a hostile party to testify in court but don't believe the judge will be impartial. Let's even say the judge has a history of wrongfully holding people in contempt and referring them for prosecution (there are some judges like that). Should I be able to take the Fifth on that basis alone? If not, what's the difference?
3.28.2007 6:08pm
J Thomas (mail):
Suppose I get subpoenaed by a hostile party to testify in court but don't believe the judge will be impartial. Let's even say the judge has a history of wrongfully holding people in contempt and referring them for prosecution (there are some judges like that). Should I be able to take the Fifth on that basis alone? If not, what's the difference?

Remember to tell the judge to his face and in front of reporters and in writing that you're taking the Fifth because he's a biased unjust judge who'll twist your words and persecute you even though you're completely innocent.
3.28.2007 9:12pm
Edward A. Hoffman (mail):
J Thomas:

I'd have a real problem if that was my only other option, but it isn't. I can just obey the subpoena and answer the questions put to me. That seems to be an option people on this list don't take seriously. It's an option that wouldn't make me happy and clearly doesn't please Ms. Goodling either, but being unhappy is not grounds to invoke the Fifth Amendment.
3.29.2007 3:27am
Jeek:
Oh, please. Are you saying Congress should just take Gonzalez at his word about what happened? Even after it turned out his earlier explanations weren't entirely truthful? And even though he's basically saying he didn't know his own top people were being sacked? At a minimum there is a strong appearance of impropriety. Congress rightfully wants to know if there was more than just the appearance. The fact that the Republicans just rolled over for the administration when they were in charge does not turn less compliant Democrats into partisan thugs.

There is quite clearly no underlying crime in this case that is worth taking seriously - it is pure partisanship. This is about the Democrats trying to score points at the expense of the administration. Goodling should no more be required to testify under oath about what happened than Leahy's staff should be required to testify under oath about why he has blocked and delayed so many judicial nominations.

People in politics don't tell the truth? Oh my. When did that start happening? If we're going to start putting politicians and their lackeys in jail for that, we're going to need a lot more prisons.
3.29.2007 8:45am
J Thomas (mail):
Jeek, the Bush administration left themselves open to partisan attack by creating the strong impression that they were requiring the Justice Department to participate in partisan legal attacks. It would be absurd for them to require the Justice Department to publicise unjustified investigations of democrats and yet to block indictments of truly corrupt republicans. And yet it appears that they have done exactly that.

And once the Bush administration appeared to the public to be doing that, it would be ridiculous for Congress not to investigate. And of course they'll make whatever political gains they can from it.

When you say there's clearly no underlying crime you're dead wrong. There may be a serious underlying crime. Obstructing justice -- preventing investigation of actual corruption and requiring prosecution where there's no evidence of wrongdoing -- is a crime. It's a lie to say that it's clear this has not happened and is not continuing to happen.

And that's why no serious republican legislators and no serious citizens are saying it's only Democratic partisanship. Nobody but utterly-partisan Bush fanatics are saying that.

People in politics don't tell the truth? Oh my. When did that start happening? If we're going to start putting politicians and their lackeys in jail for that, we're going to need a lot more prisons.

How would you feel about it if you knew the people who could put you in jail for a good long time were liars? How will you feel about it when they're Democrat liars?

This is not just a partisan issue, unless you figure that there's no common good anywhere and everything's a partisan issue. We need the Justice Department to be impartial, as much as we can arrange that. If our legal system turns into a way for the majority party to jail the minority party then our government isn't going to be any better than indonesia or egypt. Regardless which party is in power when it happens.
3.29.2007 10:08am
Failed Policy:
I have not seen any posts that deal with the simple fact that the "pleading of the 5th" is simply the first salvo from Goodling and her lawyer to strike a deal with Congress for immunity. I agree with the posts that she should be afraid of obstruction of justice charges if in fact she played a significant role in the Lam firing. But in the big picture Goodling is simply looking for a deal with Congress, and Congress should give it to her quickly to shift the focus away from her and get to the real meat of the hearings. I would be completely suprised if she named anyone else but Miers and Gonzales (i.e. not Rove) if she is granted immunity. At the very least, if Congress grants the immunity, they win style points by getting "juicy" testimony for everyone to see, and some more ammo to hang Gonzales.
3.31.2007 5:16pm