pageok
pageok
pageok
Goodling "Involved" In Domenici Call:
According to the AP, Monica Goodling "was involved in an April Sixth, 2006, phone call between the Justice Department and New Mexico Republican Senator Pete Domenici." (Hat tip: Talking Points Memo) I'm not sure what "involved" means, and unfortunately the AP story doesn't give any details. But if "involved" means either in on the calls or a participant in setting them up, that would seem to be pretty big news: Monica Goodling was the Attorney General's liaison to the White House, and her involvement would make it less likely that Domenici had just picked up the phone one day and made the call entirely on his own. On the other hand, it would certainly help explain her asserting the Fifth Amendment privilege. Stay tuned.
Constitutional Crisis (mail):
". . .her involvement would make it less likely that Domenici had just picked up the phone one day and made the call entirely on his own."
Less likely than a zero percent chance? C'mon, do you really think a party Senator called a U.S. Attorney without clearing it through the White House and/or Main Justice?
3.28.2007 3:17pm
K:
So ask the Senator.

Here we have a US Attorney (former) saying he got a call about X. Apparently Goodling, who may or may not have been involved, is going to take the Fifth.

In her place I would too. Simply to avoid the legal fees, regardless of consequences.

The media and Democrats have no problem saying that others are involved. And yet there seems to be no suggestion that the person making the call be questioned.

Domenici can't be forced to speak of the matter. I don't think he can be supeonaed. But he can be asked. The commitee should send him a letter and record his response.
3.28.2007 3:24pm
Just an Observer:
The snippet from the AP story is tantalizing, but I am not sure I trust it. If you follow the links all you find is a short article on Albuquerque KOBTV.com purporting to be an AP story from more than 24 hours ago. But there is no attribution of this particular fact (that "Goodling was involved" in the Domenici call), and no sourcing whatsoever. It is buried several paragraphs into the story as if it is matter-of-fact background.

I can't find a single AP story in any other online outlet that repeats the report, with or without detail. This could be a mistake made by some bush-league AP rewrite desk for the regional broadcast wire in an effort to localize the Domenici angle.

Right now it smells fishy. If the AP really had this story, I would expect be published elsewhere.
3.28.2007 3:34pm
cvt:
K: Why can't Domenici be forced to answer questions? Doesn't the Senate have the power to do that? I don't doubt that you are correct, but I wonder why that is. If it is because the Senate has no power to remove elected Senators, doesn't it have the power to impose a lesser punishment?
3.28.2007 3:39pm
Just an Observer:
There is a slightly longer AP story here, also dated yesterday morning.

From the context, the documentation for the April call with which Goodling was "involved" might have be drawn from the email dumps from last week. In any event, this call was between Domenici and DOJ, and was not the famous call several months later between Domenici and U.S. Attorney David Iglesias that the prosecutor said he interpreted as improper pressure.
3.28.2007 3:50pm
uh clem (mail):
If it is because the Senate has no power to remove elected Senators, doesn't it have the power to impose a lesser punishment?

Actually, the Senate does have the power to remove elected Senators. All it takes is a 2/3rds vote.

Whether they'll do it is another matter entirely - the last time it was successfully atttempted was in the 1860's. And the only times they've tried it in my lifetime the target resigned before a vote, which I suppose is the modern way.

Can they compel testimony from Domenici? I think so - I don't see any senatorial equivalent of executive privilige. There might be a separation of powers argument if it was between branches, but it's not. Will they grill Pete? We'll see.
3.28.2007 4:09pm
uh clem (mail):
Domenici can't be forced to speak of the matter. I don't think he can be supeonaed.

And why do you say this? Sure, he can take the fifth like any other citizen, but why would he be immune from a subpoena?
3.28.2007 4:12pm
K:
cvt: The Senate committee can certainly try to call him. And he might testify. Who knows?

Our legislators have always shown little belief that rules apply to themselves. I doubt that even the Democratic majority would authorize a supeona.

Consider the case of Jefferson, a Democrat. The GOP leaders screamed like banshees when a proper warrant, obtained from a federal judge, was used to search a congressional office.
3.28.2007 4:17pm
K:
I notice I misspelled subpeona as supeona.

That is not a big surprise to me.
3.28.2007 4:23pm
plunge (mail):
One of the biggest holes in the Democrats case is why, if these are potentially criminal acts, they haven't investigated the Congress-people involved. I'm guessing that it's tactical: about the in-group loyalty of Congress-people to Congress. Uncover a scheme from an already lame duck President Republican lawmakers are pissed off with to begin with? Whatever. But go after a fellow member of Congress? That's playing with fire.
3.28.2007 5:11pm
David Walser:
C'mon, do you really think a party Senator called a U.S. Attorney without clearing it through the White House and/or Main Justice?


I think it rediculous to suppose that a Senator from either party would deem it necessary to get White House permission to call a mere US Attorney. Senators might call the White House or DOJ first to see if the US Attorney's superiors might be willing to exert some influence, but they're not going to call asking for permission. Have you ever worked with these people? Humility is a trait they demand from everyone but themselves.
3.28.2007 5:55pm
Constitutional Crisis (mail):
Re: Speculation of whether Dominici called Main Justice/White House.

My point was not that Domenici would find it necessary to clear the issue through the White House or DOJ, but that he would find it desirable to do so, particularly because they are all of the same party. Maybe "clear" is the wrong word; but I highly doubt that the good Senator would be reaching down the ranks without talking to his peers first. The lack of humility cuts both ways.

Of course, this is all rank speculation. Let's get the testimony.
3.28.2007 6:12pm
Mahan Atma (mail):
I bet Sampson will take the Fifth too.
3.28.2007 6:50pm
Cold Warrior:

I think it rediculous to suppose that a Senator from either party would deem it necessary to get White House permission to call a mere US Attorney. Senators might call the White House or DOJ first to see if the US Attorney's superiors might be willing to exert some influence, but they're not going to call asking for permission.


Right. But in my experience, Senators always go straight to the top. In this case, over the head of the US Attorney and straight to the AG, expecting the AG (or one of his henchmen/women) to call up the USA and bitch him out ...
3.28.2007 6:55pm
ajftoo:
Orin,

Do you have, or have you ever had, any relationship with any of the U.S.As in question? I'm not sure if you've made any disclosure to that effect since your posts on this topic don't have links to related posts.
3.28.2007 7:21pm
David Walser:
Right. But in my experience, Senators always go straight to the top. In this case, over the head of the US Attorney and straight to the AG, expecting the AG (or one of his henchmen/women) to call up the USA and bitch him out ...
That's what seems to have happened, except no one at DOJ called the US Attorney to read him the riot act. So, the Senator called the US Attorney himself. This is just further proof of how political the AG has made the the DOJ! When a Senator calls nothing happens. Or something.
3.28.2007 9:11pm
mouldfan:
Some of the comments in this thread are interesting and I wonder where people are getting their notions of what is permissible and impermissible in a congressional investigation.

First, there is no legal reason why the Senate Judiciary Committee couldn't subpoena Sen. Domenici. They likely wouldn't due to comity among Senators, but they could compel tesimony and he has no immunity from his fellow Senators. The congressional immunity, such that it is, stems from the Speech or Debate Clause, which specifically states that Members may not "be questioned in any other place." The Senate, not being "any other place" could clearly question Domenici about his conversations with the White House, DOJ, or the US Attorney's office.

There is an interesting and to my knowledge unanswered question about whether the House Judiciary Committee, who is also investigating this issue, could question Domenici. In other words, the question is whether the House constitutes "any other place" such that the immunity could be asserted. There have only been a couple of instances where this issue has arising that I am aware of. One is during the "Credit Mobilier" scandal in the 1870's. There a former Member of the House and current Senator testified before a Senate Committee about an alleged payment/bribe he received while a Member of the House of Representatives. No privilege was ever raised or discussed, but the Senator testified to activities that occurred while he was member of the House. The other example was in the assault by cane of Senator Sumpter. The Senator was struck on the floor by a Member of the House who was upset about a speech given regarding slavery. Rather than conduct its own investigation, the Senate passed a resolution condemning the behavior, but ultimately decided it has no jurisdiction over the offenders and referred the matter to the House for investigation and punishment. No testimony was taken, but it may have been the privilege that prevented the Senate from proceeding, the historical record is not clear one way or the other.

The Jefferson case raises completely different issues as he was arguably being "questioned" by the Executive and Judicial branches. Proper search warrant notwithstanding, the FBI clearly seized, as they've admitted, documents that would have been subject to the Speech or Debate privilege, which is absolute where it applies. Had the House sought to investigate Jefferson and raid his office, he would have had no defense or privilege to assert over the documents in his office. That wasn't the case, which makes it distinguishable from the Senate questioning one of its own.
3.28.2007 9:28pm
K:
mouldfan: thanks for a good outline of the subpeona situation. I have been regretting my unclear initial statement. It should have been phrased roughly:

He can't be forced to testify. And as a practical matter I don't think he can be subpeoned (due to the comity factor).

But it is my understanding that any committee member can request information on a subject and such a request is always granted if practical. That is why I suggested he be asked to testify or reply by letter.

The FBI may have taken some records or papers not pertaining to the criminal case. Some one else may know the case law about extra material. I don't think a search has to be perfect, just reasonable per the warrant.

But Hastert wasn't fuming about what they took. He claimed absolute immunity from any any search whatsoever. Under his doctrine Jefferson could sell crack from his office or assemble an atomic bomb. Hastert demanded everything be returned unread and anything already found be quashed.
3.28.2007 10:26pm
Just an Observer:
My understanding is that as far as Domenici's conduct is concerned, the venue for a congressional investigation likely will be the Senate Ethics Committee. See this report on the Politico. He has retained counsel.
3.28.2007 10:37pm
uh_clem (mail):
He can't be forced to testify.

You've said this three times, but you haven't given any reason or support for the assertion. Unless you can cite something to back up the claim, I'm going to assume that you've got nothing.
3.29.2007 12:56am
K:
'he can't be forced to testify'

uh_clem: It it called the Fifth. He can't be forced to testify.

Subpeonas can be issued, the judges can say the Fifth doesn't apply, and he can still refuse. He may be punished but he won't be tortured.

I suppose 'forced' depends upon interpretation. Was Judith Miller forced to testify? She eventually did when Libby explicitly released her of a confidentiality pledge.

But here the statute does not allow indefinite incarceration for contempt. I believe the maximum punishment is one year.

Goodling is playing the Fifth card now. It may work. That is the topic of discussion.
3.29.2007 1:23am
Mahan Atma (mail):
"It it called the Fifth. He can't be forced to testify."


Sure he can. For example, he could be given immunity, and he then he couldn't take the Fifth.

Happens all the time.
3.29.2007 1:57am
K:
Mahan... read what I said, third line.

'forced to' is not the same as 'ordered to'

He can be ordered to testify. So what? There is an assumption in legal circles that a final ruling will be obeyed. I don't make that assumption.

He could tell them to shove the immunity.

I believe as a non-legal matter that anyone can be forced after enough torture, whether physical or mental. I also believe he won't be tortured.

Don't get me wrong. I don't really care about Pete one way or another. I just see no way to make him say what he does not choose to say.
3.29.2007 2:38am
uh clem (mail):
'forced to' is not the same as 'ordered to'

He can be ordered to testify. So what? There is an assumption in legal circles that a final ruling will be obeyed. I don't make that assumption.


I suppose that if this were a physics blog you would have a point - he can refuse to testify without violating the laws of physics. But since this is a legal blog, I read "forced to" in the legal sense, not the physical sense.
3.29.2007 11:57am
K:
uh_clem: you are absolutely right to read it in the legal sense. But the topic was what Goodling (and DeConcini might do when ordered to testify.

My point all along has been that Goodling has signalled she thinks this is political. And that truthful testimony will not protect her.

Since an offer of immunity does not include subsequent perjury she may contend that it is not adequate.

Why would she contend that? Well, maybe she honestly thinks Libby tried to be truthful but erred. And look what happened to him.

Or maybe she thinks memory is always faulty in some matter large or small and she will err.

Or maybe she thinks the Democrats just want to hold hearings perpetually, keep the headlines going, and are determined to punish as many as possible. In this last case her legal bills can be ruinous and she can be called over and over and simply legally harassed.

So, if Goodling has one or more of those ideas she may decide to not testify under any condition. That will land her in federal court. There she pleads guilty and takes the rap. She avoids legal expense, she doesn't help those she thinks are trying to trap or frame her, and she can expect to be out of jail quickly and proceed with her life.

It is not a risk free strategy. But nothing is. One risk would be that other developments lead to her being indicted for a real crime at Justice. In that case she would have tossed a strong immunity defense away.

I take what Goodling has signalled as being what she means. She will take the penalty but not testify. And that is how I stated my original comment and all others. No one can be forced to testify. Granted it may be an unrewarding tactic but it is a fact.

Where the law allows indefinite confinement the refusee can be in a miserable situation. I didn't follow Judith Miller's case carefully but she seemed to be in such a situation - talk or rot.

Goodling doesn't face 'talk or rot.' The penalty for not testifying to Congress is fixed and not too brutal.

DeConcini is another matter. In some ways he is in a better situation but has more to lose.

A motion to subpeona him probably will lose at this time. Later on, if events implicate him sufficiently, a subpeona may be issued. So my suggestion was to get him on the record by inviting testimony now and let the future take care of itself.

As I explained, my poor phrasing was interpreted to mean he is immune from a subpeona. I never thought that.

DeConcini also has to worry about the ethics committee. But that is not a topic I have any interest in.
3.29.2007 5:07pm
Lev:
3.30.2007 12:38am
Randy R. (mail):
I guess Pat Robertson will have to have a new class at Regent University: How to Avoid a Congressional Subpeona for Doing the Work of Our Lord.
3.30.2007 1:23am