Monica Goodling's announcement that she will take the Fifth before Congress has focused a lot of attention on whether she has a right to assert the Fifth Amendment privilege in these circumstances. I blogged a bit about it earlier, and I wanted to add a few more thoughts. My bottom line: I tend to doubt the assertion of privilege was proper, but I can't be certain without knowing a lot more facts.

  In re Morganroth, 718 F.2d 161 (6th Cir. 1983), is instructive. Morganroth had given testimony under oath in an earlier proceeding, and in this case was going to be asked under oath about his earlier testimony. Morganroth asserted his Fifth Amendment privilege on the ground that he worried his truthful testimony this time might lead to prosecution for earlier false statements. Here is how the Sixth Circuit analyzed the question:

[W]hile it is clear that a witness, upon interposing his claim of privilege, is not required to prove the hazard in the sense in which a claim is usually required to be established in court, Hoffman, supra, 341 U.S. 486, it is equally clear that a witness' "say so" does not by itself establish the hazard of incrimination. Id. Where there is nothing suggestive of incrimination about the setting in which a seemingly innocent question is asked, the burden of establishing a foundation for the assertion of the privilege should lie with the witness making it. We do not hold, however, that a witness has the burden of proof on this issue. A witness presents sufficient evidence to establish a foundation for the assertion of the privilege and shows a real danger of prosecution if it is not perfectly clear to the court "from a careful consideration of all of the circumstances in the case, that a witness is mistaken, and that the answer[s] cannot possibly have such a tendency to incriminate." Hoffman, supra, 341 U.S. 488, 71 S.Ct. 819.

Stated differently, sufficient evidence is presented by a witness if a court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution. Short of uttering statements or supplying evidence that would be incriminating, a witness must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution and, if necessary to complement non-testimonial evidence, personal statements under oath to meet the standard for establishing reasonable cause to fear prosecution under this charge. Statements under oath, in person or by affidavit, are necessary because the present penalty of perjury may be the sole assurance against a spurious assertion of the privilege. Argument may be supplied by counsel but not the facts necessary for the court's determination.

Id. at 169-70.

  So the test seems to be pretty mushy and fact-sensitive: the question is whether Goodling could establish to a judge "sufficient evidence" such that the judge could "by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution." I tend to doubt that such a sound basis exists here. But then we would need to know a lot of factual details to make that call with any certainty; we would need to know exactly what Goodling could tell the judge about why she feared prosecution. (We probably also need to know what the judge ate for breakfast, but that's another matter.) We just don't know those details, so I don't think we can make an assessment of whether Goodling validly asserted the privilege. It seems unlikely to me that the assertion of privilege is valid, but I can't be sure.

  Finally, I wanted to respond to Eric Muller's point that the Fifth Amendment protects the innocent. It's very true that the Supreme Court has said this, although I think it's generally meant in a somewhat specific way. For example, Grunewald v. United States, 353 U.S. 391 (1957), suggests in dicta that a person can assert the privilege when they have reason to think they'll be prosecuted despite being innocent. When might that occur? Imagine a case in which a suspect was framed and all the evidence points towards him. He's innocent, but he would have reason to think that even his innocent disclosures could be used against him. He would still be able to assert the privilege even though he is innocent and would testify truthfully. So as in Morganroth, the key issue is always whether there is a "real danger" of prosecution.

  Anyway, that's my sense of things. I'm not a Fifth Amendment expert, so if I'm off base please let me know and I'll post a correction.