Goodling To Take the Fifth:
The Associated Press
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).
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.
More on Goodling and the Fifth Amendment Privilege:
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.