On Monica Goodling's Taking the Fifth

By Jeralyn, Section Other Politics
Posted on Tue Mar 27, 2007 at 12:23:06 PM EST
Tags: Alberto Gonzales (all tags)

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The blogosphere is all over the map on whether Monica Goodling has the right to invoke her 5th Amendment privilege against self-incrimination and refuse to testify before a Congressional committee investigating the firing of U.S. Attorneys.

Christy at Firegoglake
Eric as Is That Legal?
Talking Points Memo
Appellate lawyer Peter Goldberger in the comments to Big Tent Democrat's post here yesterday

I think she has the right to take the 5th. And, here's what a TalkLeft reader, who happens to be a former high-ranking Justice Department official during the Clinton Administration, whom I have known for many years and have the utmost respect for, writes in to say:

More...

I was stunned by this from today's New York Times:

"The attorney general said Mr. Sampson was in charge of the process but periodically told him about his progress in identifying under-performing prosecutors. 'I was never focused on specific concerns about United States attorneys as to whether or not they should be asked to resign,' Mr. Gonzales said. "'I was more focused on identifying, or making sure the White House was appropriately advised of the progress of our review.'"

Think about that for a second. The Attorney General of the United States is saying that he delegated to his chief of staff - a thirty-something political type with absolutely no law enforcement experience - the decision on whether to fire United States Attorneys, the chief law enforcement officer of the district - and the Attorney General's only concern was to make sure that the White House was kept informed. What basis did Sampson have for judgment of someone's effectiveness either as a manager or as a prosecutor? Is it really appropriate to delegate to a political operative the authority to determine which Presidentially appointed and senatorially confirmed officials should be fired? And what does it say about the competence and the priorities of the Attorney General that his only concern was the White House side of this? No wonder that the decisions seems to have been based on political considerations ("loyal Bushies") rather than law enforcement effectiveness.

Don't get me wrong here. The President has the absolute right to choose who he wants as U. S. Attorney. Indeed I would go farther and say that the President, as the chief executive, has the right to direct a U.S. Attorney to drop a particular investigation for political reasons. But there should be political consequences for that kind of behavior, and in that respect this is playing out exactly as it should. Moreover, the lack of experience that the Department leadership has in law enforcement, and their focus on politics over policy, has consequences.

As a Justice Department official from the Clinton years I find a particular irony in looking back at the Republican attacks on Janet Reno for "politicizing" the Department. That was false; but it's clear that they were projecting their own expectations on our conduct. This Administration has done tremendous damage to the Department.

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On Monica Goodling's Taking the Fifth | 22 comments (22 topical)

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Implications of Taking the Fifth (5.00 / 1) (#3)
by jhooversnyder on Tue Mar 27, 2007 at 12:59:05 PM EST

The Fifth Amendment privilege against self-incrimination is like other privileges: it allows a subpoenaed witness to refuse to provide testimony or evidence, provided the privilege applies.

Therefore, the question here is whether the privilege applies. I have a thorough analysis on my blog, but the long and short of it is that Goodling is entitled to claim the Fifth Amendment if there is a good faith basis for believing that her testimony would "furnish a link in the chain of evidence" leading to her conviction for a prior crime.

It has been noted that Ms. Goodling actually maintains her innocence. This does not per se render the Fifth Amendment claim invalid, but as I explain in greater detail in the above-referenced post, the case on which Goodling relies (Ohio v. Reiner) carves out a narrow set of facts under which a person can take the Fifth while maintaining her innocence:

What Reiner and the cases that have followed it have in common is the following: (1) there was absolutely no question that clearly identified crime occurred; (2) the witness was present when and where the crime occurred or could have occurred, and had the opportunity to commit the crime; (3) the witness was among a very small number of people so situated; and (4) another person in that suspect group had accused the witness of committing the crime.

As for what is next, I am only speculating, but the likely course seems to be that the Senate Judiciary Committee will demand a private explanation of her basis for claiming the Fifth Amendment. If this explanation does not satisfy the Committee, they will issue the subpoena and hold her in contempt of Congress if she fails to appear.

At that point, the matter could be referred to the U.S. Attorney, who in turn would be required (by my reading of the statute) to empanel a Grand Jury and seek indictment. If Goodling were indicted for contempt of Congress, she would no doubt move to dismiss the indictment on the grounds that she was privileged (under the Fifth Amendment) not to provide the testimony at issue. At that point, the matter of whether the privilege was properly invoked would be adjudicated under the principles I referred to above, and the Court would either hold that the privilege was properly invoked (and dismiss the indictment) or hold that it was not properly invoked (and uphold the indictment).

The right is limited to the nature of the question (5.00 / 1) (#13)
by Mary on Tue Mar 27, 2007 at 03:06:10 PM EST

isn't it?

If she is asked about something like her knowledge of or participation in schemes to disinform Congres, obstruct ongoing investigations, provoke baseless investigations for political malice, etc. then the 5th it is.

But questions of a more general nature would seem to be up for grabs.

BTW - I have to respond to this from the post above: "The President has the absolute right to choose who he wants as U. S. Attorney."

He technically has the absolute right to choose, I guess, but he doesnt have an absolute right to HAVE. The Senate gets to decide whether his choice meets with their approval or not. That's what the Constitution set up. To the extent the President and his staff were involved in insuring to himself and absolute right to HAVE as well as choose, by setting up a removal process that insulates appointments from Senate review, and then went ahead in furtherance of that plan with the Arkansas nomination, knowing it would NOT pass Senate approval standards and being willing to mislead Congress in a pretense of "good faith" while gumming it to death and running out the clock . . .

That's not so much an absolute right.

Clinton Was No Goody Two Shoes (1.00 / 1) (#8)
by terryhallinan1 on Tue Mar 27, 2007 at 01:42:40 PM EST

Surely some here must remember the Clinton Administration charging the Travel Office employees with criminal actions in order to award contracts to a contributor. So far Bush hasn't charged the fired prosecutors with criminal offenses.

A fascinating little contretemps occurred when Janet Reno was asked by Orrin Hatch if she would look into the INSLAW case. Sure did. She buried it in the deepest hole she could find. Hatch has to be incredibly naive.

For any that don't know, INSLAW was the name of a computer program that tracked case law for the DOJ. The program was expropriated by Ed Meese. One investigative reporter, Danny Casolero, committed suicide looking into matters. I guess looking into such things had to demonstrate suicidal attempt.

So why was Janet Reno looking out for Ed Meese?

Need I remind anyone of noblesse oblige?

Always best not to make waves.

Best, Terry

wrongwing parrots (none / 0) (#9)
by Sailor on Tue Mar 27, 2007 at 01:55:29 PM EST

squawk, squawk ... clinton did it, clinton did it! ... squawk, squawk.

put her in the chair and make her repeat over and over how she's taking the fifth and watch it run on every news show for days. I can't wait to see the Daily Show verion;-)

(p.s. Would someone please pass the popcorn?)


Why? (none / 0) (#10)
by sphealey on Tue Mar 27, 2007 at 02:03:27 PM EST

> For any that don't know, INSLAW was the
> name of a computer program that tracked
> case law for the DOJ. The program was
> expropriated by Ed Meese.

I actually agree with the OP troll that the INSLAW case was a travesty of justice that was never fully investigated. However, I am curious as to why Janet Reno, who in the Radical Right's pantheon is only a few steps from the Devil Clinton himself, would give a free pass to Ronald Reagan's Ed Meese? That seems a bit odd to say the least ;-)

sPh


: Trolling you think? (none / 0) (#12)
by terryhallinan1 on Tue Mar 27, 2007 at 02:58:42 PM EST

I actually agree with the OP troll that the INSLAW case was a travesty of justice
Well thank for that at least.

I am curious as to why Janet Reno, who in the Radical Right's pantheon is only a few steps from the Devil Clinton himself, would give a free pass to Ronald Reagan's Ed Meese?
Why need I repeat myself?
Noblesse oblige allows latitude to the nobility in power that is not given to mere citizens. The kabuki dance between those sharing the same heights is entertaining and all but not particularly meaningful.
Is a troll anyone who does not share your assumption that internecine warfare between the rich and powerful is all there is?
Best, Terry

the fifth (1.00 / 1) (#16)
by diogenes on Tue Mar 27, 2007 at 04:53:55 PM EST

As I recall, some people justified the squeeze on Libby since he would presumably cut a deal and squeal on Cheney. Since that is the prevailing mentality nowadays, I wouldn't blame anyone for not wanting to be subject to perjury charges, especially if no one is charged with committing an actual crime (who exactly was charged with outing Plame, anyway?)

: Whom? (5.00 / 1) (#19)
by Repack Rider on Tue Mar 27, 2007 at 06:33:20 PM EST

who exactly was charged with outing Plame, anyway?
No one, apparently because the obstruction of justice and perjury which Libby was convicted of prevented a thorough investigation.
I seem to remember that Bill Clinton was impeached for telling a lie about something that wasn't a crime. Do you remember that?
If something can be done to the President of the United States, it can probably be done to anyone else. If you have a problem with that, talk to one of the GOP members of Congress who established that precedent. I suggest you start with adulterers and liars Henry Hyde and Newt Gingrich.

What are the implications? (none / 0) (#1)
by sphealey on Tue Mar 27, 2007 at 12:37:14 PM EST

> I think she has the right to take the 5th.

Jeralyn,
Could you explain what the implications are then? I assume the 5th Amendment right is not a magic wand that can be waved over any investigation to make it go away, so presumably there is some consequence to invoking it. What happens next? Thanks.

sPh

the short answer to your question is: (none / 0) (#4)
by scribe on Tue Mar 27, 2007 at 01:08:35 PM EST

"Political Firestorm".

This, because the Bush administration has, yet again, validated all the "Republicans = Criminals" statements by the non-Rethugs of the world.

The longer answer is that the next logical question will/should be:

"What precisely is the allegedly criminal exposure against which Ms. Goodling seeks to protect herself, by declining to testify?"

Followed immediately (and it was already on TV last night) by:

"Why are there allegedly criminal activities going on in the Justice Department?"

and by:

"What is this administration doing by having people fearing they may become criminals for talking about their work, doing in the Justice Department?"

As to the last two, the answer would be what we've been discussing on other threads lately:

"Exactly what the President wanted."

As to the first, I think a commenter over at TPM hit it on the head (I paraphrase):

"18 USC 1001 - that portion of the statute dealing with inducing another to provide false information to Congress in the course of its investigations. (McNulty has already told Schumer he'd given the Senate inaccurate information in his testimony earlier. It appears Goodling was the provider of that information to McNulty, and worked as the pivot person in this particular loop/web."

So, where to go with the investigatin' when Ms. Goodling won't talk?

I suggest subpoenaing the email servers for rnc.org and gwb43.com, for starters. Those are disinterested third parties who just happen to have stacks and stacks of electrons recording information that Inquiring Minds Want To Know.
Push others in DoJ to talk.
Start putting career employees' stories out there - getting testimony about how widespread the political chicanery affected cases. Show that the cancer was not this isolated incident, but rather systemic.

: Asking the legal question though (none / 0) (#7)
by sphealey on Tue Mar 27, 2007 at 01:41:18 PM EST

> "Political Firestorm".
Quite possibly. But I was actually asking that question from a strictly legal perspective. As I said, people can't just "plead the 5th" with no consequences or there would never be any criminal convictions much less Congressional investigations.
Or can they? Non-legal person seeks help.
sPh

AMEN to that!!!!!!!!!!!!!! (none / 0) (#2)
by TexDem on Tue Mar 27, 2007 at 12:37:27 PM EST

emphasis mine

possible prosecution? It doesn't make sense (none / 0) (#5)
by zaitztheunconvicted on Tue Mar 27, 2007 at 01:19:17 PM EST

Could Goodling be prosecuted on the grounds that
she misinformed McNulty, who then used her misinformation of him to misinform Congress?

That doesn't sound right. To me, that doesn't sound like a reasonable charge can be made against her, even if it were true. Since when are people prosecuted for lying to Congress by proxy? Why not fire McNulty for incompetence, if he reports to Congress things that are false, being so misled by his underlings?

I think there are several reasons for which she is claiming the 5th, and both of them bad:

honest testimony would paint her friends, associates and superiors in a bad light and those persons have power over her future and/or she feels she owes them some loyalty;
she wouldn't want to give testimony, until the White House and Gonzales have figured out just how much and which version of the truth they can release, (a version that they hope will not be upset by any further testimony or email disclosures) and then, her testimony will comport with that version of the truth, without doing any additional damage to the administration;
because of 1 and/or 2, the testimony she would give would be flawed and corrupted and giving it would subject her to later possible prosecution a la Libby.

Let her plead the fifth (none / 0) (#6)
by Che's Lounge on Tue Mar 27, 2007 at 01:27:21 PM EST

It's her right. Let others indict her with their testimony. Then she will feel the consequences.

Is there anything she knows that would justify an immunity deal?

: answering your question (none / 0) (#11)
by scribe on Tue Mar 27, 2007 at 02:07:00 PM EST

Is there anything she knows that would justify an immunity deal?
In a word, "No."
No one walks on this one.

gonzo-gate (none / 0) (#14)
by noodles on Tue Mar 27, 2007 at 03:36:00 PM EST

On a related Gonzo-gate issue, how accurate are these reports that the AG ignored sexual abuse of young boys and refused to prosecute becauwe there wasn't 'bodily-harm' and that the children probably enjoyed it as "none resisted or voiced any objection to the conduct"?

---------------------------
Attorney General Gonzales among officials who allegedly ignored abuse of minor boys

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=54861
---------------------------
Teen sex scandal ignored by AG, others for 2 years

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=54882
---------------------------

: It looks.. (none / 0) (#15)
by desertswine on Tue Mar 27, 2007 at 04:45:17 PM EST

like a pot about to boil over.

Maybe (none / 0) (#17)
by sarcastic unnamed one on Tue Mar 27, 2007 at 04:56:19 PM EST

Goodling is taking TL's "nobody talks, everybody walks" advice?

: I think... (none / 0) (#21)
by kdog on Tue Mar 27, 2007 at 09:37:28 PM EST

she should take the Fifth if she can. Use 'em or lose 'em.
I also think a Justice Dept official taking the Fifth should have the decency to resign, or be canned. Or else this government is as screwed up as I think it is, and thats not good at all.

HAHA (none / 0) (#18)
by peacrevol on Tue Mar 27, 2007 at 04:59:05 PM EST

She said, "There are so many ammendments...to the constitution...I can only choose ONE...I plea da fif. F-I-F FIIIIIIIIIIF! Naw I'm kidding ask me another question. Fif."

Young hot shot lawyer (none / 0) (#20)
by Natal on Tue Mar 27, 2007 at 08:34:05 PM EST

It seems to me we have a young hot-shot lawyer with a right-wing agenda who lacked political experience and went into job she way over her head. Actually I kind of feel sorry for her. But she'll have to pay the price in the fallout. C'est la vie, I guess.

Must again repeat (none / 0) (#22)
by diogenes on Wed Mar 28, 2007 at 09:36:26 PM EST

That if Armitage confessed before the grand jury started, then how in heaven's name did Libby obstruct any prosecution? I suppose he might have allegedly have obstructed the attempt to prosecute Cheney, but I thought that this investigation was about the leak and not about being Kenneth Starr.