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Tuesday, March 27, 2007

"There's no 5th amendment privilege against testifying before meanies"
Posted by Jill | 6:41 AM
Josh Marshall sorts out Department of Justice White House Liaison Monica Goodling's decision to invoke the 5th Amendment rather than testify before the House Judiciary Committee:


I'm obviously not a lawyer. But I think these good folks may be on to something. (TPM Reader TB identifies himself as a lawyer.) Certainly there's no 5th amendment privilege against testifying before meanies. So the alleged partisanship of the committee doesn't fly. And in any case, the committee doesn't prosecute you for perjury. Unless I'm completely forgetting how this works, all they can do is make a referral to the Justice Department. (Maybe they can hand it to Gonzales next time he comes to testify.) And the most sensible defense against a perjury trap, I would have thought, would be to tell the truth. After all, to the best of my knowledge Goodling hasn't testified on this subject before -- so it's not like they can trap her into contradicting previous sworn testimony.


p>In any case, if you look at the letter Goodling's attorney sent the committee, the essence of his argument is that the committee has relinquished its legitimacy as an investigative forum and that she has thus unilaterally decided that she will refuse to testify. (As part of the argument for not testifying, Goodling's lawyer notes that "it is not uncommon for witnesses who give testimony before the Congress to face criminal investigations and even indictments for perjury, false statements, or obstruction of congressional proceedings.") It amounts to a sort of witness's nullification.


Interestingly, or perhaps revealingly, at the end of the letter, John Dowd, Goodling's attorney asserts that "we have advised Ms. Goodling (and she has decided) to invoke her Constitutional right not to answer any questions."


This is more than a semantic point. The constitution says nothing about a right not to answer questions. The actual words are that no one "shall be compelled in any criminal case to be a witness against himself" -- or in the more modern parlance, your right against self-incrimination. This is why you lose your 'right not to answer questions' as soon as you're granted immunity.


So again, look at what the Goodling letter claims. The argument throughout almost all of it is that the committee is too hostile to her for her to answer its questions. On this point, let me put this out to the lawyers in our audience, of whom there are quite a few. Take a look at the Goodling letter and let us know whether you think this holds up as grounds for asserting a 5th Amendment privilege against not testifying.


Now, one more point. Above I said 'almost' the whole argument. On page two of the letter, Goodling's lawyer asserts as the fourth reason for her refusal to testify that "it has come to our attention that a senior Department of Justice official has privately told Senator Schumer that he (the official) was not entirely candid in his report to the Committee, and that the official allegedly claimed that others, including our client, did not inform him of certain pertinent facts."


His name isn't stated. But this appears to be a reference to Deputy Attorney General McNulty, the subject of this post from earlier this evening. Here we finally appear to have a bad act that Goodling believes or at least claims may expose her to criminal prosecution -- lying to Congress by proxy by intentionally misinforming an official about to testify before Congress.


Just watching this from the outside, it looks as though that is the bad act she's afraid to testify about or -- and somehow I find this more believeable -- she's afraid of indictment for perjury because she has to go up to Congress and testify under oath before the White House has decided what its story is. And yeah, I'd feel like I was in jeopardy then too.




TPM has been at the forefront of reporting on the firings of these U.S. attorneys, doing the job that the press used to do before guys like Chris Matthews started their Adoration of the Codpiece and it became more important to get a patronizing nickname and get invited to the right parties than to serve a role to make sure the government was doing the work of the People. If you haven't yet bookmarked TPM (and yes, Mom, I'm talking to you, among others), you should make a point of checking in there to keep up with the latest on the Administration's attempt to use the federal Judiciary as its political arm to try to ensure its perpetual power.

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