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Gonzo Aide Pleads The Fifth

By Big Tent Democrat, Section Law Related
Posted on Mon Mar 26, 2007 at 04:01:25 PM EST
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Not that there is anything wrong with that:

Monica Goodling, a 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. He said that members of the House and Senate Judiciary committees seem already to have made up their minds that wrongdoing has occurred in the firings.

Hmm, that may well be but last I looked, Congress could not prosecute anyone, except for impeachment. Now there's a thought . . .

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    Gonzo Aide Pleads The Fifth | 33 comments (33 topical)

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    Gonzo aid pleads the 5th (5.00 / 1) (#1)
    by jmt on Mon Mar 26, 2007 at 04:08:09 PM EST
    I wonder if there is any sort of person who could grant use immunity to compel her testimony?  You know, like some sort of prosecutor?

    Don't go there: (5.00 / 1) (#4)
    by scribe on Mon Mar 26, 2007 at 04:14:46 PM EST
    that's how Oliver North managed to get his conviction reversed.

    No one walks on this one - they'll only come back worse, in 8 or 10 years.

    Parent

    Night of the Living Dead part III (5.00 / 1) (#6)
    by squeaky on Mon Mar 26, 2007 at 04:22:10 PM EST
    No one walks on this one - they'll only come back worse, in 8 or 10 years.

    Yes, since we are experiencing Night of the Living Dead part II, (Iran-Contra) the last thing we need in 8-10 years is the re-remake.

    Parent

    Congress can too (none / 0) (#2)
    by Big Tent Democrat on Mon Mar 26, 2007 at 04:11:46 PM EST


    Parent
    Where's Dan Burton when you really need him? (5.00 / 2) (#3)
    by scribe on Mon Mar 26, 2007 at 04:13:26 PM EST
    Let's all remember those glorious days of the Clinton witch-hunts, when pleading the Fifth was tantamount to admitting the deepest, most grievous crimes, with this wonderful excerpt from a noteworthy source:

    There were about 70 Congressional witnesses who have pled the Fifth Amendment right not to self-incriminate (or chosen to flee the country) in the Clinton-Gore dollars for political influence scam. In a round of testimony by FBI Director Louis Freeh before Congress, Rep. Dan Burton asked:
    "Mr. Freeh, over 65 people have invoked the 5th Amendment or fled the country in the course of the Committee's investigation.  Have you ever experienced so many unavailable witnesses in any matter in which you've prosecuted or in which you've been involved?"

    Freeh responded: "Actually, I have."

    Burton asked: "You have? Give me, give me a rundown on that real quickly."

    Freeh: "I spent about 16 years doing organized crime cases in New York City..."

    Ironic, is it not, that all the Rethugs are (or will be) going on about how good, true and right it is to plead the Fifth to Congress.

    Answering my own question:  Burton's missing votes on the golf course, of course.

    Heh (none / 0) (#5)
    by Big Tent Democrat on Mon Mar 26, 2007 at 04:15:30 PM EST


    Parent
    How about... (5.00 / 2) (#7)
    by desertswine on Mon Mar 26, 2007 at 04:24:38 PM EST
    she gets the Padilla Treatment.

    Smart move Monica..... (5.00 / 1) (#11)
    by kdog on Mon Mar 26, 2007 at 05:38:40 PM EST
    Your bosses would throw you under the bus in a heartbeat. I'd bet she was just following orders from above, and shouldn't be left holding the bag.

    Taking the Fifth - a little clarification (5.00 / 4) (#18)
    by Peter G on Mon Mar 26, 2007 at 08:06:26 PM EST
    There seems to be some ambiguity and possible confusion here about permissible grounds for "taking the Fifth":  From the linked story:  
    "John Dowd, Goodling's lawyer, suggested in a letter to Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., that the Democrat-led panel has laid what amounts to a perjury trap for his client. * * * 'The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real,' Dowd said. Goodling was key to the Justice Department's political response to the growing controversy. She took a leave of absence last week.
         'One need look no further than the recent circumstances and proceedings involving Lewis Libby,' Dowd said, a reference to the recent conviction of Vice President Dick Cheney's former chief of staff in the CIA leak case.

    Just to be clear:  Anyone can properly invoke her Fifth Amendment privilege with respect to past conduct if a truthful answer to a question, asked in a setting of compulsion (where you can be cited for contempt if you simply refuse to answer), could be used by a zealous prosecutor, rightly or wrongly, to build a case against you for alleged past criminal acts.  Such as, in this case, attempting to obstruct justice in the New Mexico U.S. Attorney's investigation.  Or conspiring with DoJ colleagues to obstruct a congressional investigation.  But you cannot properly "take the Fifth" just to avoid a situation in which you would otherwise be tempted to commit perjury. In other words, the claim of the Fifth must relate to a potential accusation of past criminal conduct.  It cannot be based on a crime you have not yet committed (i.e., perjury in the requested testimony).  The Supreme Court decided that in a case called Apfelbaum in 1980.

    hope Congress knows this (none / 0) (#20)
    by zaitztheunconvicted on Mon Mar 26, 2007 at 09:25:14 PM EST
    I hope that someone informs Congress of this.

    Thanks for letting us know.

    Parent

    uncanny! amazing! (none / 0) (#8)
    by the rainnn on Mon Mar 26, 2007 at 05:00:48 PM EST
    d. kyle sampson, the AG's former chief of
    staff, has indicated that he will
    speak, under oath, to the committee
    about various matters related to purge-gate. . .

    we now know that mr. sampson will likely say,
    under oath, that he did not mislead mr. gonzales.

    tantalizingly, he may say quite a bit more.

    we also now know that the other putative "fall-
    person" for mr. gonzales, ms. goodling, will not go
    quietly.  her invocation of the fifth will likely
    simply be a precursor to an agreement under which
    she will ultimately testify, in return for a
    fairly broad grant of immunity. . .

    it is an unusual sign -- and not an encourag-
    ing one -- for mr. gonzales, at least, when
    one of his lawyers -- his senior lawyer, in
    this case -- decides to invoke a fifth
    amendment privilege against self-incriminantion.

    i write this because it suggests, to me, that
    mr. gonzales is going to have a good bit
    of difficulty asserting that he simply
    followed, in good faith, legal advice he
    sought and received from his staff, related
    to the dismissal of the eight u.s. attorneys.

    we already know that various public documents
    contradict mr. gonzales' earlier claim that he "wasn't
    very involved    " in the decision to ask for
    the resignations of these eight u.s. attorneys.

    all of this is shaping up very badly for mr.
    gonzales -- but is quite predictably -- almost
    uncannily -- providing much "noisy cover" and
    precious time-delays, for messrs. rove and cheney.

    here endeth this lesson in rovian stall-politics.

    not to quibble, btd. . . but. . . (none / 0) (#9)
    by the rainnn on Mon Mar 26, 2007 at 05:11:08 PM EST
    . . .Hmm, that may well be but last I looked, Congress could not prosecute anyone, except for impeachment. Now there's a thought . . .

    i think any statement made before
    senator leahy's committee -- as a
    sworn utterance -- may easily give
    rise to a charge of perjury, in the
    event that documents, or other reliable
    evidence surfaces to directly contradict
    those sworn utterances.  i think she
    knows this is going to either lead -- and
    quickly, we hope -- to (1) gonzo's
    resignation; or (2) to a drawn-out pissing
    contest of who said what to whom, and who
    e-mailed whom about what, when. . .  in
    which case, perjury looks like a razor-edged
    coral reef around the harbor of a contiuing
    legal career, given this particular
    ship-load of republican pirates. . .

    so -- if she sez nuttin', she can't be
    charged with perjury, at least. . .

    but let's not forget that this is
    all good news for cheney -- it distracts
    from the war, from plame-gate, from cooked
    intel, from well. . .  errr'ything else. . .

    just my $0.02.

    Not my point (none / 0) (#10)
    by Big Tent Democrat on Mon Mar 26, 2007 at 05:25:50 PM EST
    Or Dowd's point, as I understood it.

    Parent
    i did understand. . . (none / 0) (#12)
    by the rainnn on Mon Mar 26, 2007 at 05:56:26 PM EST
    you were suggesting
    impeachment of the gonzo. . .

    i do think hers was a smart move,
    especially given the disarray the
    republicans seem to find themselves
    in, what with bush -- no, cheney, -- no,
    rove -- no, bush. . . claiming to be
    the voice. . .

    i didn't realize, though, that
    ms. goodling went to law school
    at a pat-robertson-affiliated-law-
    program. . .  why does a fundamental
    christian need to take the fifth -- ever?

    hmmmm. . . i, for one, wanna' know. . .

    Parent

    Shorter monica (none / 0) (#13)
    by Sailor on Mon Mar 26, 2007 at 05:59:51 PM EST
    'because someone else got caught lying and obstructing justice then I refuse to testify since I would lie and obstruct justice'

    Grand jury time!

    Here is an out for Harriet and Karl (none / 0) (#14)
    by msobel on Mon Mar 26, 2007 at 06:31:00 PM EST
    They can agree to testify under oath in open session and just plead the fifth.  No constitutional confrontation.

    questions and thoughts (none / 0) (#15)
    by zaitztheunconvicted on Mon Mar 26, 2007 at 06:40:05 PM EST
    Maybe I am slow, but I wonder

    why is Monica Gooding still on the federal payroll?

    I mean, she was supposed to be serving the public interest and was being paid with my and your tax dollars.  Now she is telling us that she can't talk about her conduct because it might implicate her in one or more crimes.  Are my taxes still paying for this . . . ?  Are your taxes paying for her salary?

    And, now that she is refusing, sure, bring her before the committees, and let them ask and let her answer, "I decline to answer on the advice of counsel" several times while the cameras roll.

    And, if there did turn up some evidence of her criminal conduct, let her know that she will testify or she will be prosecuted.

    my idea (none / 0) (#16)
    by zaitztheunconvicted on Mon Mar 26, 2007 at 06:52:29 PM EST
    Miss Gooding,

    I understand that today you have come before the committee of the house and the Senate, and you have said that you decline to answer our questions, on the grounds it might incriminate you.  And you have done this in a way that impedes the efforts of Congressional committees to learn the truth about what may be the perversion of the criminal justice system to political ends.  You call yourself or you have called yourself a public servant and you collect a salary paid by American taxpayers and you refuse to testify about your conduct.  Miss Gooding, we'd like you to reconsider your position, which, to us, seems reprehenible.

    Please return tomorrow and let us know if this is still your position.  And, for what we may add, if you wish to refuse to testify, my hope is that, the next time you jaywalk, you be prosecuted to the fullest extent of the law.

    Parent

    when she pleads the fifth congress should (none / 0) (#17)
    by chickens on Mon Mar 26, 2007 at 07:23:08 PM EST
    request that she be fired.

    Seems like a no brainer to me.

    Parent

    Stand up for the Fifth Amendment (5.00 / 2) (#22)
    by Peter G on Mon Mar 26, 2007 at 09:45:46 PM EST
    It is unconstitutional to condition continued public employment on a person's giving up the right to claim a Fifth Amendment privilege.  The threat of firing is itself prohibited "compulsion" to self-incriminate.  The Supreme Court decided that one in a series of half a dozen cases from 1967 to 1977.  

    Parent
    OK (none / 0) (#23)
    by zaitztheunconvicted on Mon Mar 26, 2007 at 10:08:43 PM EST
    OK, so you have caused me, a non-lawyer, to have to read a little more about this.  Apparently, at least, all records kept of her meetings done in the performance of her public duties, are in fact, not protected by the 5th amendment?

    documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record-keeper.

    I don't suppose that there are laws requiring that minutes be kept of meetings at the DOJ?

    Parent

    No Fifth Amendment (almost) for Documents (none / 0) (#25)
    by Peter G on Mon Mar 26, 2007 at 10:45:08 PM EST
    Right you are.  You can't claim the Fifth to decline to produce documents -- even private documents, by the way, such as your own records or your diary -- to protect against the incriminating effect of what is written in them.  You may be able to claim the Fifth against the implied statements you make in turning over documents, such as "I have these, and I knew where they were."  But there are easy ways for the prosecutor or Congressional committee around that.  And as you found out, the "act of production" doctrine doesn't apply to turning over official records at all.

    Dunno about that keeping minutes business.

    Parent

    Four interesting words: (none / 0) (#19)
    by walt on Mon Mar 26, 2007 at 09:01:26 PM EST
    Inherent Contempt of Congress.

    You could look it up!  A committee can accuse, a simple majority of the chamber (not both) can issue a citation & a simple majority of the chamber can convict.

    Do it, Sen. Leahy.  Do it now.

    Sorry to burst your bubble ... (5.00 / 1) (#21)
    by Peter G on Mon Mar 26, 2007 at 09:37:54 PM EST
    ...  but properly invoking the Fifth Amendment privilege to avoid compulsory self-incrimination for suspected past wrongdoing, which Ms. Goodling seems to be doing, is not and cannot be contemptuous.  It is her constitutional right, just like it is everyone else's in this country.  To suggest otherwise is McCarthyite thinking.  

    Parent
    pretext and the truth (none / 0) (#24)
    by zaitztheunconvicted on Mon Mar 26, 2007 at 10:16:08 PM EST
    Suppose that Ms Goodling is invoking the 5th to avoid a possible charge of perjury which might be incurred in the following scenario:
    that she were to testify, but not truthfully, in order to lessen the appearance of culpability on her part or the part of her superiors.

    How do we distinguish that proactive invocation of the 5th, which you say is improper and not constitutionally defensible, from an invocation of the 5th about actual wrongdoing done in the past?

    Parent

    Who determines the validity of the claim? (none / 0) (#26)
    by Peter G on Mon Mar 26, 2007 at 10:55:18 PM EST
    Good question.  Here's the answer: If a person claims the Fifth, and the validity of the claim is not immediately apparent, the judge (if it happens in court) or the Congressional committee chairperson (if it's at a congressional hearing) can ask for a "hypothetical" explication of the basis for the claim from the witness (or more likely, the witness's lawyer).  The presiding officer then decides the validity of the claim of privilege.  If overruled, the witness must decide whether to stand on the privilege and risk a contempt citation (subject to appeal) or to talk.  Since the answer is now being given under compulsion, if the person is later prosecuted s/he can claim that the Fifth Amendment was violated in bringing those charges.  This potentially creates a big problem for the prosecutor in the later case if the judge in that case finds the Fifth Amendment claim had been valid after all, and can result in that case getting thrown out (this is more or less how Oliver North eventually won his perjury-before-Congress case, with help on the Fifth Amendment issue from the ACLU).  

    Parent
    next question (none / 0) (#27)
    by zaitztheunconvicted on Mon Mar 26, 2007 at 11:22:25 PM EST
    OK, lets suppose that she is claiming the 5th amendment protections and her only constitutionally permissible claim is for preceding conduct, and not to prevent a later perjury charge from what would have been false testimony given to Congress a la Libby.

    And, supposing that I were on the Senate or house committee, and I decide that getting the truth is more important than any possible subsequent prosecution of this particular crook named Goodling.  So, I and Congress grant to her immunity and her testimony is then compelled.  And, once it is delivered, it becomes apparent that Ms Goodling's claim of 5th amendment protection was disengenuous and merely a ploy to avoid giving truthful testimony about the misconduct of others, whether crinimal or merely outrageously offensive to public and Congressional sensibilities.  What sanction may she face, if any?

    Parent

    Next and last (none / 0) (#28)
    by Peter G on Tue Mar 27, 2007 at 12:31:39 AM EST
    So on your scenario, it turns out she had no reasonable fear of self-incrimination from her testimony?  Then she shouldn't be prosecuted for anything, right?  If she is prosecuted, that would seem to suggest she did have a reasonable concern.  However, theoretically it would seem that a bad faith, invalid claim of the Fifth would be a sort of endeavor to impede or obstruct the investigation, which is a crime under 18 USC 1505, with a 5 year maximum sentence.  I suppose it could also be a contempt of Congress.  

    Parent
    re Oliver North (none / 0) (#32)
    by zaitztheunconvicted on Tue Mar 27, 2007 at 10:21:52 AM EST
    I read about the Oliver North case.  It seems that the judge in the case decided that the Congressional testimony had influenced the jury in a case involving other crimes.

     he was initially convicted of three: accepting an illegal gratuity, aiding and abetting in the obstruction of a congressional inquiry, and destruction of documents

    In any case, it seems to me that if Congress wants to stop certain kinds of executive misconduct, it has to do what some prosecutors do:
    offer immunity to underlyings for truthful testimony and use the truthful testimony to go after and convict the higher-ups.  


    Parent

    "capital or otherwise infamous crime" (none / 0) (#29)
    by walt on Tue Mar 27, 2007 at 01:09:22 AM EST
    "nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law"

    Certainly no "capital" crime here

    "Infamous," show me

    "Criminal case," certainly not yet--congressional hearing, so far

    "Witness against himself". . . as compared to witness against someone else

    This is a rat's nest of improbables.  It seems that for the Constitutional protections to function here, there should be perhaps a couple of random, tenuous connections to the words of the amendment--maybe just a little connection???

    fortunately for all americans. . . (none / 0) (#30)
    by the rainnn on Tue Mar 27, 2007 at 07:42:14 AM EST
    walt, that is not how
    those clauses of the fifth
    amendment have been construed,
    and in some states, codified
    into statutes. . .

    one's right to avoid self-
    incrimination attaches in
    any "past act" criminal
    setting -- from any initial
    investigation, all the way
    through any trial and appeal.

    this is good news for innocent
    americans, and yet allows scoundrels
    a wide measure of protection. against
    either sort of accused, though, the
    government must be able to prove its
    case, without compelling either type
    of accuseds' admissions.

    Parent

    Perhaps not necessarily (none / 0) (#33)
    by walt on Tue Mar 27, 2007 at 10:21:56 AM EST
    I recall Leon Jaworski trying to work around this "stuff" & it's not that simple.  LtCol O. North & RAdm J. Poindexter did not go to prison because of varied interpretations of the 5th.

    Link
    This BigOrange diary is much more thorough than my limited observations.

    Parent

    Her lawyer is deliberately cryptic... (none / 0) (#31)
    by Deconstructionist on Tue Mar 27, 2007 at 07:46:22 AM EST
    ... but I think that what he is implying is that if she testifies truthfully she will make statements that are contradicted  by her prior statements  and/or by statements made by others. Therefore, she would theoretically be exposed to potential charges if a prosecutor decided to base a case on the theory that her past statements or the statements of others were in fact the true ones.

      In other words just because she now says "this is the truth" does not mean anyone else has to believe her.

      Also understand that use immunity does not extend to perjury/false swearing committed during the immunized testifying.

       This could very well just be "clever" lawyering by her attorney, creating the impression that her fear is limited to this type of exposure rather than exposure to other potential offenses already committed.

    Gonzo Aide Pleads The Fifth | 33 comments (33 topical)

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