The Volokh Conspiracy - Goodling's Basis for Taking the Fifth:

Like Orin, I was quite skeptical when I heard that Bush Justice Department appointee Monica Goodling planned to invoke her Fifth Amendment rights against self-incrimination if called to testify about why the administration decided to remove several U.S. attorneys. Eric Muller is "disgust[ed]" by the Justice Department's actions, but nonetheless thinks she was justified. As he writes on Is that Legal?

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).)

Both Orin and Eric know more about the right against self-incrimination than I do, so I'll defer to the two of them.

Related Posts (on one page):

More on Goodling and the Fifth Amendment Privilege:
Goodling's Basis for Taking the Fifth:
Goodling To Take the Fifth:

(link)

JBL (mail):

I don't have any particular expertise in this, but it strikes me that Ohio v. Reiner isn't applicable. In that case, the Court essentially held that a witness's claim of innocence is not (in and of itself) a valid basis for denying the 5th amendment privilege. That is a narrow and fairly intuitive idea. The ruling is certainly not broad enough to provide an automatic trigger for the 5th amendment privilege--one which avoids a fact-based inquiry.

As the Reiner Court says, whether the 5th is available still depends on the court's inquiry into the witness's "risk of incrimination."

Here, Goodling isn't claiming innocence; she's claiming that that the senate judiciary committee's hearings are a partisan and hostile atmosphere. That strikes me as inadequate to establish a risk of incrimination which would trigger the privilege. (If a privilege so extensive were established, Congress would have a lot of trouble undertaking any investigation of the Executive branch--there would be no witnesses.)

What I take to be Goodling's real argument (buried in one cryptic sentence of the letter) is that she may have to reveal that she caused her colleague McNulty to give false testimony to Congress in a past hearing. That is where the risk of incrimination exists. The rest is a political smokescreen unsupported by precedent.

3.27.2007 11:39pm

Lev:

What I take to be Goodling's real argument (buried in one cryptic sentence of the letter) is that she may have to reveal that she caused her colleague McNulty to give false testimony to Congress in a past hearing. That is where the risk of incrimination exists.

I don't read it that way. She seems to be saying that McNulty is apparently saying he did not tell Schumer correct facts, and claims his failure was because of others who either gave him no information or bad information or incorrect facts.

It is equally likely to your scenario, that McNulty lied and will try to get others nailed for his lying.

Since the Democrats have set up the hearings to cause inconsistencies under oath that they can then refer to the DoJ for prosecution of perjury, lying to congress etc. etc., and then hold press conferences about that and about the need for a special prosecutor to investigate the matter, and about how the Administration is stifling the investigation into this obvious criminal activity, she would be extraordinarily stupid to do anything other than tell Leahy and the rest that she ain't sayin' nuthin'.

3.28.2007 12:17am

Bill Poser (mail) (www):

Come on, Lev, this is hardly some sort of partisan trick unique to the Democrats. Getting witnesses to contradict themselves is a standard investigative technique. And you don't need testimony under oath in congressional hearings to do it. Lying to a federal investigator is itself a felony under Title 18, section 1001.

3.28.2007 12:23am

dvorak:

This may be worth reading to spur a few directions of thought.

3.28.2007 1:40am

Getting witnesses to contradict themselves is a standard investigative technique. And you don't need testimony under oath in congressional hearings to do it. Lying to a federal investigator is itself a felony under Title 18, section 1001.

What investigation is going on into what potential criminal activity by a federal investigator other than by the Dem members of the committee?

Even Fitzgerald had the putative violation of the Intelligence Identities Procedure Act to serve as cover for his activities.

3.28.2007 11:07pm

What investigation is going on into what potential criminal activity by a federal investigator other than by the Dem members of the committee?

In an administration with greater respect for the rule of law, the DOJ itself might investigate. In this administration, there is certainly the prospect of a special prosecutor. And incidentally, you may have noticed that it is not merely the Democrats in Congress who are concerned about the administration's firing of US attorneys. A fair number of Republicans are now expressing concern as well.

3.29.2007 3:19am

	[Jonathan Adler, March 27, 2007 at 9:20pm] Trackbacks Goodling's Basis for Taking the Fifth: Like Orin, I was quite skeptical when I heard that Bush Justice Department appointee Monica Goodling planned to invoke her Fifth Amendment rights against self-incrimination if called to testify about why the administration decided to remove several U.S. attorneys. Eric Muller is "disgust[ed]" by the Justice Department's actions, but nonetheless thinks she was justified. As he writes on Is that Legal? 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).) Both Orin and Eric know more about the right against self-incrimination than I do, so I'll defer to the two of them. Related Posts (on one page): More on Goodling and the Fifth Amendment Privilege: Goodling's Basis for Taking the Fifth: Goodling To Take the Fifth: (link) JBL (mail): I don't have any particular expertise in this, but it strikes me that Ohio v. Reiner isn't applicable. In that case, the Court essentially held that a witness's claim of innocence is not (in and of itself) a valid basis for denying the 5th amendment privilege. That is a narrow and fairly intuitive idea. The ruling is certainly not broad enough to provide an automatic trigger for the 5th amendment privilege--one which avoids a fact-based inquiry. As the Reiner Court says, whether the 5th is available still depends on the court's inquiry into the witness's "risk of incrimination." Here, Goodling isn't claiming innocence; she's claiming that that the senate judiciary committee's hearings are a partisan and hostile atmosphere. That strikes me as inadequate to establish a risk of incrimination which would trigger the privilege. (If a privilege so extensive were established, Congress would have a lot of trouble undertaking any investigation of the Executive branch--there would be no witnesses.) What I take to be Goodling's real argument (buried in one cryptic sentence of the letter) is that she may have to reveal that she caused her colleague McNulty to give false testimony to Congress in a past hearing. That is where the risk of incrimination exists. The rest is a political smokescreen unsupported by precedent. 3.27.2007 11:39pm (link) Lev: What I take to be Goodling's real argument (buried in one cryptic sentence of the letter) is that she may have to reveal that she caused her colleague McNulty to give false testimony to Congress in a past hearing. That is where the risk of incrimination exists. I don't read it that way. She seems to be saying that McNulty is apparently saying he did not tell Schumer correct facts, and claims his failure was because of others who either gave him no information or bad information or incorrect facts. It is equally likely to your scenario, that McNulty lied and will try to get others nailed for his lying. Since the Democrats have set up the hearings to cause inconsistencies under oath that they can then refer to the DoJ for prosecution of perjury, lying to congress etc. etc., and then hold press conferences about that and about the need for a special prosecutor to investigate the matter, and about how the Administration is stifling the investigation into this obvious criminal activity, she would be extraordinarily stupid to do anything other than tell Leahy and the rest that she ain't sayin' nuthin'. 3.28.2007 12:17am (link) Bill Poser (mail) (www): Come on, Lev, this is hardly some sort of partisan trick unique to the Democrats. Getting witnesses to contradict themselves is a standard investigative technique. And you don't need testimony under oath in congressional hearings to do it. Lying to a federal investigator is itself a felony under Title 18, section 1001. 3.28.2007 12:23am (link) dvorak: This may be worth reading to spur a few directions of thought. 3.28.2007 1:40am (link) Lev: Getting witnesses to contradict themselves is a standard investigative technique. And you don't need testimony under oath in congressional hearings to do it. Lying to a federal investigator is itself a felony under Title 18, section 1001. What investigation is going on into what potential criminal activity by a federal investigator other than by the Dem members of the committee? Even Fitzgerald had the putative violation of the Intelligence Identities Procedure Act to serve as cover for his activities. 3.28.2007 11:07pm (link) Bill Poser (mail) (www): What investigation is going on into what potential criminal activity by a federal investigator other than by the Dem members of the committee? In an administration with greater respect for the rule of law, the DOJ itself might investigate. In this administration, there is certainly the prospect of a special prosecutor. And incidentally, you may have noticed that it is not merely the Democrats in Congress who are concerned about the administration's firing of US attorneys. A fair number of Republicans are now expressing concern as well. 3.29.2007 3:19am