The Volokh Conspiracy

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

But the key point there, StevenK, is that the Fifth Amendment doesn't cover that.

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.

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.

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.

Whoops. EV beat me to that one.

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.

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?

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....

There might a reasonable claim of 5th amendment protection on accessory / conspiracy to contempt of congress / obstruction of justice.

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.

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.

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.

"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.

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.

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.

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.

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.

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.

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.

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.

What's all this talk about "perjury traps"?

Is it really that hard to just tell the damn truth?

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.

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.

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.

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?

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".

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.

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?

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.

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?

Here's a hint: LBJ, Bobby Kennedy, the FBI, and Martin Luther King, Jr.

Mark Field,

Got it in one.

Can't go a whole response without the ad him, eh?

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.

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.

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.

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.

"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.

"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?

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.

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.

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.

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.

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.

David,

I don't think its reasonable to believe that the target of the investigation is Monica Goodling.

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)?

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.

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.

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.

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 ....

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.

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.

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?

Nixon was a leftist? Only if you've forgotten, or never learned about, his "impoundment" policies.

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...

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.

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?

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?

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.

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?

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.