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Say What? House Agrees To Private Testimony from DOJ Officials

By Big Tent Democrat, Section Law Related
Posted on Fri Mar 30, 2007 at 10:41:44 AM EST
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I have no idea why this deal was struck:

The House Judiciary Committee has worked out an agreement to have transcribed interviews with at least eight current and former employees of the Justice Department behind closed doors. The committee said that the deal followed a series of phone and written negotiations. The first interview will be today with Michael Elston, Deputy Attorney General Paul McNulty's chief of staff. Following will be interviews with McNulty, Associate Deputy Attorney General David Margolis; the former director of the Executive Office for United States Attorneys Michael Battle; Monica Goodling, the DOJ's liaison to the White House (now on leave); acting Associate Attorney General William Mercer; and Assistant Attorney General William Moschella.

Why in Gawd's name was this deal struck? There is not even an executive privilege claim here. What am I missing? This seems supremely stupid to me.

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    • Say What? House Agrees To Private Testimony from DOJ Officials | 39 comments (39 topical)
    Now... (5.00 / 3) (#4)
    by desertswine on Fri Mar 30, 2007 at 10:59:44 AM EST
    we know why Rove was dancing.

    i beg to differ. . . (none / 0) (#21)
    by the rainnn on Fri Mar 30, 2007 at 01:07:12 PM EST
    he dances as/because rome burns. . .

    Parent
    Rove and Miers are not on the list, so.... (5.00 / 2) (#6)
    by lilybart on Fri Mar 30, 2007 at 11:06:18 AM EST
    It appears the first poster is correct. They need a little more information to FORCE the interviews of dear Karl and Harriet.

    If they get enough damning evidence, more REPS will get on board with under-oath, transcripted interviews.

    One can hope.

    Also, while there is smoke from possible illegal fires, at the moment it is about ethical lapses and just pure evil and manipulation of the elections. Until they have MORE, it might be too long a fight, and not one we want to lose.

    Huh? (5.00 / 1) (#9)
    by Big Tent Democrat on Fri Mar 30, 2007 at 11:11:18 AM EST
    Rove and Miers claim executive privilege.

    These folks claim no privilege.

    I don't follow your point.

    Whether there is compelling evidence or not is not the issue.

    Parent

    privilege seems a stretch. . . (none / 0) (#25)
    by the rainnn on Fri Mar 30, 2007 at 01:13:39 PM EST
    we are not talking about
    national security. . .

    no, if the administration is to
    be believed, the "interest" at
    stake is personnel decision-making.

    that will make for a very thin
    claim of privilege, imho.

    these underlings can bring down the house.

    and, to answer another poster below,
    the attorney-client privilege won't apply,
    because it belongs to the client, not
    the attorney. . .


    Parent

    Non Gov email addresses a factor? (none / 0) (#36)
    by lilybart on Fri Mar 30, 2007 at 02:22:45 PM EST
    It also may be true that because it seems a lot of this correspondence was done on RNC email, it can't be privledged.

    Parent
    Poor C-Span 3 ratings? (5.00 / 3) (#7)
    by cal11 voter on Fri Mar 30, 2007 at 11:06:55 AM EST
    I laughed when the Senators were joking about viewership.  My suspicion is that they don't see these witnesses as primetime testimony.  Maybe, in closed session, they'll allow "professionals" to question the witnesses.  I was really disappointed in the quality of the follow-up questions by Senators on both sides.  Too much speech making for me.

    I second your disappointment, but note (5.00 / 4) (#10)
    by scribe on Fri Mar 30, 2007 at 11:12:58 AM EST
    that getting elected Senator (or Congresscritter) does not depend upon the same skill set as does trying cases or interrogating witnesses.  While many of these Senators (Specter and Leahy come to mind immediately) were prosecutors at some point, I kind of doubt they're up to speed on interrogating hostile, evasive witnesses the way a trial lawyer would be.  Specter's been a Senator since time out of mind, and his job as prosecutor was as the Philadephia DA back in the late 60s and early 70s - he surely knows (knew) a lot about supervising lawyers, but I kind of doubt he ever actually tried cases himself.  

    Fitz, the US Attorney who actually tries cases, is the exception.

    Plus, as you rightly note, the politics of the situation will cause some to pull their punches.

    Parent

    House Judiciary Decision (5.00 / 1) (#15)
    by naschkatze on Fri Mar 30, 2007 at 12:28:02 PM EST
    O.K. Behind closed doors, with a transcription, but under oath?  I've read Big Tent Democrat's post several times but see no mention of an oath being taken or not being taken.

    Whatever, you have a scoop, TalkLeft,  because I've gone over my menu of blogs, and you are the only blog which has this story right now.

    TPM has it first (5.00 / 2) (#16)
    by Big Tent Democrat on Fri Mar 30, 2007 at 12:33:59 PM EST
    But I think I am the first to criticize it.

    Heh, I am a pretty critical fellow.

    Parent

    It's easy (5.00 / 1) (#19)
    by rdandrea on Fri Mar 30, 2007 at 01:00:21 PM EST
    The deal was struck because unlike the White House's first offer, there will be transcripts.  Transcripts can (and will) be leaked.

    Keep your powder dry.

    aaagh (5.00 / 2) (#24)
    by baba durag on Fri Mar 30, 2007 at 01:11:09 PM EST
    we got so much dry powder around the humidity is dropping.  

    Parent
    Correct me if I am wrong... (none / 0) (#29)
    by sphealey on Fri Mar 30, 2007 at 01:45:46 PM EST
    > The deal was struck because unlike
    >  the White House's first offer

    Correct me if  I am wrong, but these are Justice Departement employees and other than Alberto are not subject to claims of Executive Privilage.  They had no choice but to apppear (or plead the 5th) and Congress could have humiliated them all day if it wanted.

    That tells me they are smaller players, and the Dems wanted to avoid humiliating them so that others like them would be more likely to cooperate.

    sPh

    Parent

    I also (5.00 / 1) (#33)
    by Claw on Fri Mar 30, 2007 at 02:01:10 PM EST
    think it shows how serious the HJC is about this.  If they just wanted to ham it up and make speeches they wouldn't agree to private testimony.  Being accommodating is often a sign of strength, not weakness.  I know I'm usually as sweet as punch to witnesses I plan to impeach(especially when it comes to scheduling depositions, etc.)...right up until the moment I impeach them.  I know several prosecutors who employ similar tactics.  

    It appears . . . (5.00 / 1) (#38)
    by walt on Fri Mar 30, 2007 at 02:29:45 PM EST
    . . . as if Rep. Conyers is allowing "appearances" to protect some of the mid-level staffers.  They can be candid in a closed session & the people they are talking about can't make trouble for them a few minutes or hours later.  Written transcripts have a totally different effect than on-camera testimony.  It seems that this may be an excellent method to keep these people out of the spotlights (klieg lights per Bu$h xliii) & get their information without a media sideshow.

    It's also useful in that it forces the lame stream muddya pundits to deal with transcripts, verbatim, and not try to describe clothing, facial expressions, duhs & unhs & hominas, and the sort of stammering that some witnesses fall into during a "confrontational" hearing.

    They're setting the perjury trap (4.75 / 4) (#5)
    by scribe on Fri Mar 30, 2007 at 11:05:29 AM EST
    for Gonzo, Miers and maybe Rove.  The witnesses avoid the spectacle of I dunnos, and the Committee keeps some (not necessarily a lot, given there are Repugs on the committee*) over the dissemination of the information derived.  With public testimony, there is a 100% chance subsequent witnesses will shape their memories and their testimony to coincide with and go along with the prior witness' testimony.

    It's just like sequestering witnesses (i.e., keeping witnesses out in the hall or otherwise out of the courtroom) in a criminal trial.

    I'd suspect there's also a part of the deal which restricts access to the transcript until some time after.

    In short, I think they're going for the kill.

    I like your reasoning! Hope this is plan. nt (5.00 / 2) (#8)
    by lilybart on Fri Mar 30, 2007 at 11:07:20 AM EST
    .

    Parent
    question (4.66 / 3) (#13)
    by Patriot Daily on Fri Mar 30, 2007 at 11:58:33 AM EST
    given that monica stated she would invoke 5th before senate hearings, and she is now talking to house, do you think house offered her immunity, and would that carry over to senate? how does her talking to house affect senate?

    She would be immune from prosecution (5.00 / 3) (#17)
    by Big Tent Democrat on Fri Mar 30, 2007 at 12:35:40 PM EST
    assuming she tells the truth, for what she says to the House.

    Presumably, she could get a similar deal from the Senate.

    The Senate could just use her House testimony if it wanted.

    Parent

    ah, may be good idea after all (5.00 / 1) (#28)
    by Patriot Daily on Fri Mar 30, 2007 at 01:37:23 PM EST
    looks like muckraker left out a few facts.

    The interviews are by investigators not lawmakers. This little squib indicates that the interviews are basically like pretrial depos or interviews conducted at investigation stage and then at least one of the persons, Elston, may testify under oath and in public:

    House and Senate investigators spent hours behind closed doors Friday interviewing Michael Elston, chief of staff to Deputy Attorney General Paul McNulty, about inconsistencies in Gonzales' account of his role in the firings of eight federal prosecutors.

    Elston and three officials - a personal lawyer and Justice Department aides - entered the House Judiciary Committee's suite just after 10 a.m. EDT Friday for what aides predicted would be five hours of interviews. Elston was not expected to be sworn during Friday's interview, but he has agreed to testify voluntarily under oath and in public.

    If this is true of all of the persons to be interviewed, maybe the reason is keep information less public so bush and justice dept. have less info about what is being revealed so dems can better make their case when the testimony is later under oath and public at senate or house hearing.

    At least if there were all true, I would not be mad at the dems again for screwing up or backing down to what otherwise would be giving bush exactly what he wanted.


    Parent

    Privilege (5.00 / 2) (#18)
    by Gabriel Malor on Fri Mar 30, 2007 at 12:54:25 PM EST
    Note: this is not my area of expertise. I do believe you may be on to something, however.

    First, it is uncontroversial that once a witness has asserting Fifth Amendment privilege, they may then choose to waive it.

    It is equally uncontroversial that a witness who has  chosen to testify about a matter which may incriminate them cannot, once testimony is begun, re-assert her Fifth Amendment privilege in a single proceeding. Once waived, the privilege is lost.

    However, I'm not quite sure what happens when a person chooses to testify in one venue, but asserts Fifth Amendment privilege to the same information in another. On the one hand, once the potentially incriminating information is "on the record" in one venue, there seems little point to pretending that the witness still retains her right not to incriminate herself. On the other hand, the Fifth Amendment privilege is regarded as one of our most sacred protections. It was, after all, instituted as a response to torture by the English government. Exceptions to such an important right should be few and narrowly construed.

    In this case, I believe the question will come down to what constitutes "testimony." If the witness are not "under Oath" in the closed-door investigation in the House, they cannot even assert their Fifth Amendment privilege. Since they cannot even invoke it in the House, it is nonsensical to claim that they have waived it in the Senate. But this depends on what kind of proceedings are going to be held in the House (something I don't know).

    My question about the whole thing: these are lawyers, right? Why aren't they asserting attorney-client privilege and the work product rule? Am I forgetting something obvious (like maybe government lawyers don't get those privileges)?

    Parent

    Okay, I kept digging... (5.00 / 2) (#22)
    by Gabriel Malor on Fri Mar 30, 2007 at 01:07:27 PM EST
    ...and I found some more stuff.

    First, according to a recent court case (Ginyard v. U.S., 816 A.2d 21 (D.C. 2003)) voluntary testimony in one proceeding does not constitute waiver in another.

    Also, according to a 1970s California case (People v. Maxwell, 94 Cal. App. 3d 562), testimony during one stage of an investigation does not constitute waiver for later stages of investigation.

    In that case, a criminal trial, a witness had testified during a preliminary hearing but claimed Fifth Amendment privilege during the trial itself. Her claim was that she might perjur herself if she were compelled to testify. This sounds a heckuva lot like the theory that Goodling's lawyer has asserted.

    Parent

    my very quick reaction, here, btd. . . (4.50 / 2) (#1)
    by the rainnn on Fri Mar 30, 2007 at 10:53:24 AM EST
    and i certainly could be wrong. . .
    but my gut-feeling is that these
    people were the minor players -- and by
    taking statements in private, the
    bigger fish may more easily be fried.

    sampson's testimony was illuminating
    yesterday, in that it suggests a pretty
    out-of-control, who-cares-about-the-law
    culture at the DC office of the attorney
    general. . .

    no files, no paper, no notes. . . just
    some e-mail. . .  riiiiight.

    so -- get the underlings to admit what
    was going on, then prosecute the
    top of the AG office -- and perhaps
    beyond. . .

    consider the real possibilty that
    ms. goodling is asserting the fifth
    because she aguably commited criminal
    violations of the hatch act    .

    in retrun for the truth, the committee
    gets a whole lot more on ranking admin-
    istration officials.

    at first blush, this looks like a
    savvy, prosecution-driven, move. . .

    just my $0.02.

     

    Why won't everyone want this deal? (5.00 / 3) (#2)
    by Big Tent Democrat on Fri Mar 30, 2007 at 10:54:21 AM EST
    Is this not in essence what Bush is offering?

    Parent
    If it was the Senate Judiciary (5.00 / 3) (#3)
    by Edger on Fri Mar 30, 2007 at 10:58:28 AM EST
    Leahy probably would have said no way.

    Parent
    the idea, i think. . . (none / 0) (#20)
    by the rainnn on Fri Mar 30, 2007 at 01:06:21 PM EST
    is to flip the small fish,
    btd -- and use their statements (which,
    if false, even if not sworn, constitute
    crimes. . . lying to congress is a crime)
    against gonzales/rove/etc. . .

    which is to say -- the ones who want this
    deal include people with things to say, but
    with unclean hands, themselves -- and a lot
    to lose -- like law licenses -- take ms.
    goodling as exhibit "a" for this proposition.

    i could be wrong, but i don't think so.

    this is the tightening of the noose
    around the upper eschelons. . .

    Parent

    I'm hoping I'm missing something (none / 0) (#11)
    by baba durag on Fri Mar 30, 2007 at 11:48:38 AM EST
    but fear I'm not.  I don't see any other way to view this than capitulation.  But Conyers is a guy out to bring the Bushies to justice.  So I'm just hoping there's something going on I don't get.

    Remember, this is Judiciary, (5.00 / 6) (#12)
    by scribe on Fri Mar 30, 2007 at 11:57:17 AM EST
    not Government Reform.

    When (IIRC) Sen. Reid said Gonzo would be "Gone, one way or another", I think he meant it, and knew pretty well that this was coming.

    Judiciary is where impeachments start.

    Parent

    The Dems will need some serious evidence... (5.00 / 1) (#14)
    by cal11 voter on Fri Mar 30, 2007 at 12:20:59 PM EST
    if they are going to convince Repubs to vote to impeach and convict Gonzales.  Behind the scenes receipt of evidence might facilitate negotiations if the evidence compelled Gonzales resignation.  But, IMHO, I think a deal would happen only if Gonzales resignation was going to be the end of the show.  Right now I don't see it happening.

    Parent
    I remember (none / 0) (#23)
    by baba durag on Fri Mar 30, 2007 at 01:08:57 PM EST
    But it doesn't change what I'm saying.  It's capitulation - unless we're missing something.  And I have hope for Conyers.

    Parent
    seems about right. (none / 0) (#26)
    by the rainnn on Fri Mar 30, 2007 at 01:14:12 PM EST
    to me as well. . .

    Parent
    Who knows (none / 0) (#27)
    by jarober on Fri Mar 30, 2007 at 01:31:14 PM EST
    Maybe, unlike TL, they understand the concept of "At Will" employment.  Maybe it occurred to them how things would go with the next Democrat in the White House if they made US attorneys be unaccountable to the President, and they didn't like the idea of a bunch of legacy Republicans working to undermine their agenda.  

    Heh (none / 0) (#31)
    by Big Tent Democrat on Fri Mar 30, 2007 at 01:53:08 PM EST


    Parent
    It may (none / 0) (#30)
    by Claw on Fri Mar 30, 2007 at 01:46:08 PM EST
    be a combination of good legal strategy and compromise with republicans (some of whom seem every bit as pissed off about this as the dems).  In private testimony, there will be no real or perceived need for grandstanding and the witnesses may be more forthcoming.  I'm sure we'll all get to watch when they start frying up the bigger fish.

    quite so, claw. (none / 0) (#35)
    by the rainnn on Fri Mar 30, 2007 at 02:12:56 PM EST
    i agree. . .

    Parent
    the full press release from conyers. . . (none / 0) (#32)
    by the rainnn on Fri Mar 30, 2007 at 01:56:21 PM EST
    except for the parts i've bolded,
    this is pasted verbatim,
    as it hit the wire on the 29th:

    Conyers Announces Justice Department Deal to Begin Staff Interviews  

     For Immediate Release
     Contact: Jonathan Godfrey(202) 226-6888

     March 29, 2007
     Melanie Roussell(202) 226-5543

    (Washington, DC)- Today, House Judiciary Chairman John Conyers, Jr. announced an agreement with the Justice Department (DoJ) to start interviewing Justice staffers who may have been involved in the recent mass firing of U.S. Attorneys. Following a series of phone and written negotiations, DoJ agreed to make at least eight current and former employees available for transcribed interviews with House and Senate Democrat and Republican investigators, starting tomorrow at 10 A.M. with Michael Elston, Chief of Staff to the Deputy Attorney General.

    "The ability to move forward with our investigation with the Justice Department's cooperation is a big step," Conyers said. "If we are going to get to the bottom of this, we must talk to those involved in guiding the decision-making process. This agreement, which involves on the record interviews in advance of possible hearings, helps bring us down that path. We still anxiously await further negotiation with the White House."

    Conyers and other congressional leaders have been involved in negotiations with the DoJ for weeks regarding interviews with key individuals involved in the US Attorney matter, including: Michael Elston, Deputy Attorney General Paul McNulty, Associate Deputy Attorney General David Margolis, Michael Battle, former Director of the Office of U.S. Attorneys, Monica Goodling, Special Counsel to the Attorney General and White House Liaison, William Mercer, U.S. Attorney for Montana and Acting Associate Attorney General, and William Moschella, Principal Associate Deputy Attorney General. Interviews for the other DoJ employees have not yet been scheduled but the Justice Department has agreed to make those individuals available. Goodling has already announced that she will invoke her Fifth Amendment rights when asked any questions regarding this investigation.

    To confirm the agreement, Conyers and the other leaders agreed that investigators would keep the content of the interviews confidential pending consultation with Department officials.

    He added, "While we are encouraged by this agreement, we still look forward to resolving the issue of redacted and withheld documents that the Department has not yet produced. I am hopeful we can achieve progress on that important issue very soon as well."

    The Judiciary Committee has previously authorized subpoenas for interviews with White House staff and documents, as well as the redacted and withheld documents from the Justice Department. Conyers has not issued any subpoenas, pending further discussions with the White House and the Justice Department.

    Elston will meet with investigators in the House Judiciary Committee office, 2138 Rayburn House Office Building, tomorrow at 10 A.M. The full text of the Department's letter to Conyers is available at: http://www.judiciary.house.gov.

    ##110-JUD-020807##

    Well, (none / 0) (#34)
    by Claw on Fri Mar 30, 2007 at 02:03:21 PM EST
    there you go.

    I think this is tactical (none / 0) (#37)
    by msobel on Fri Mar 30, 2007 at 02:23:51 PM EST
    There are many fronts attacking the WH on this topic including Waxman's gimme your emails and the Senate.  This is one that may give more ammunition and advance the narrative without forcing a confrontation which could stall the effort.  It is a way of continuing to build momentum.

    IANAL or an investigator but that seems to make sense.

    BTD vindicated on Sun. NY Times editorial page (none / 0) (#39)
    by the rainnn on Sat Mar 31, 2007 at 10:52:52 PM EST
    ever-believing that there
    are multiple valid perspectives
    on any given event, i am happy
    to report that the editorial
    page of tomorrow's (sunday)
    new york times agrees with
    Big Tent Democrat -- and, in
    very forceful tones:

    ". . .Secret interviews are not a good idea. They do not help the public learn what happened or judge whether there were abuses. They could also become an obstacle to the investigation moving forward. The White House may argue later that Congress got the information it needed, and only wants to conduct show trials, as President Bush put it recently. . ."

    i do still maintain that this is
    a solid prosecutorial approach to
    the problem of multiple, powerfully
    recalcitrant, and centrally-coordinated
    participants in a conspiracy. . .

    but time alone will tell. . .

    Say What? House Agrees To Private Testimony from DOJ Officials | 39 comments (39 topical)