Is This Why Goodling Invoked The Fifth Amendment?

Anonymous Liberal has unearthed what appears to be an incriminating e-mail in which Monica Goodling instructed DOJ personnel to destroy documents that were clearly pertinent to an ongoing Congressional investigation. The e-mail, dated February 12, 2007, states in relevant part:

These are new and updated USA documents which can be used with the media or friendlies. Please delete prior versions. . .

Why could this be a criminal situation? Because of the federal obstruction statute. This article provides a nice background on the subject:

The federal crime of obstruction of justice is defined by 18 U.S.C. § 1503 to include conduct that, among other things, corruptly endeavors to obstruct or impede the due administration of justice. To sustain its burden of proof, the government must prove that there was pending judicial proceeding, that the defendant knew this proceeding was pending, and that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice.

In applying the obstruction of justice statute to issues of destruction of documents, federal courts generally have not required that a subpoena have issued. Rather, it is sufficient for an obstruction conviction that the defendant knew that a grand jury was investigating possible violations of federal law and intentionally caused destruction of the incriminating document. U.S. v. Fineman, 434 F. Supp 197 (E.D.Pa 1977).

. . . In addition, the Sarbanes-Oxley Act of 2002 has expanded the federal law of obstruction by adding new sections to 18 U.S.C. § 1512 and enacting a new statute, 18 U.S.C. § 1519, creating additional crimes relating to alteration, destruction, mutilation or concealment of records, documents, or objects. Section 1512© requires acting corruptly with intent to impair the item’s integrity or availability for use in “official proceedings,” defined by 18 U.S.C. 1515 to include proceedings before federal courts, agencies, Congress, and regulatory proceedings involving the insurance business. This statute is particularly striking in providing, in subsection (f), that an official proceeding need not be pending or about to be instituted at the time of the offense and that the document need not be admissible in evidence or free of a claim of privilege.

It appears that Ms. Goodling's attorney was blowing smoke when he complained about witchhunts and partisan investigations.

Rather more likely, Goodling has real concerns about criminal prosecution for her actions.

Here is the text of 15 U.S.C., Section 1519:

§ 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

20 years? Ouch.
Update [2007-4-28 23:40:24 by Big Tent Democrat]: Here is a case where Sarbanes-Oxley was used to prosecute destruction of evidence by an attorney whose client was charged with child pornography.

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    I keep hearing that loud thud. (5.00 / 4) (#1)
    by Edger on Sat Apr 28, 2007 at 11:07:07 PM EST
    How many times can Karl Rove pass out in one week?

    This Monica's job is to blow Rove.


    Rove's right-hand hit-man, Tim Griffin, added Iglesias to the hit list of prosecutors who were cut down on December 7, 2006.

    Griffin himself, after the December 7 firings, was appointed by Attorney General Gonzales, at Rove's personal request, to one of the newly-vacated slots as US Attorney for Arkansas. The sleeper cell of Rove-bot US attorneys is now in place to bless voter suppression games in 2008.
    1. It's all about the 2008 election.
    2. It's not about Gonzales.
    Gonzales is their glove-puppet. Why fire him? The nation watches these hearings and wants to kill something. But why shoot the puppet? It's time to fire the puppeteer. Eh, Mr. Rove?

    Don't Just Shoot The Puppet. Fire The Puppeteer.

    how many more criminal situations (4.33 / 3) (#2)
    by Miss Devore on Sat Apr 28, 2007 at 11:13:43 PM EST
    can one underline with yellow markers?

    might as well jerk off to impeachment porn at Je blague:


    Ms. Goodling (5.00 / 2) (#3)
    by Big Tent Democrat on Sat Apr 28, 2007 at 11:23:05 PM EST
    is subject to criminal law, not impeachment.

    Thanks for stopping by.


    {brushes off condescending tone} (none / 0) (#5)
    by Miss Devore on Sat Apr 28, 2007 at 11:40:31 PM EST
    meaning it don't mean a thing if goodling gets to lie with impunity, under immunity. she's a goldfish in a blender. you think a fourth-tier law school grad is gonna give it up? I have no doubt they are set to make her sympathetic where they failed with abu g.

    essentially, I'm not buying smack from any other dealer than Waxman.


    Surprisingly (none / 0) (#7)
    by Big Tent Democrat on Sat Apr 28, 2007 at 11:43:24 PM EST
    I agree with this post.

    Though the irony of a complaint from you on condescension is funny to me.


    no surprise to me (none / 0) (#8)
    by Miss Devore on Sat Apr 28, 2007 at 11:54:51 PM EST
    no irony on the condescension complaint--you did try to point out to me that goodling couldn't be "impeached" which I knew. And which I did not imply.

    and if you bothered to read the thread a Jb--which you would NEVA admit reading-you understand my point.


    I admit (5.00 / 1) (#9)
    by Big Tent Democrat on Sun Apr 29, 2007 at 12:17:43 AM EST
    I didn't read it.

    hubris will do you in. (1.00 / 2) (#11)
    by Miss Devore on Sun Apr 29, 2007 at 12:29:27 AM EST
    it's a lot less boring than this blog.simply for the fact of having an unchained persona au gratin on board.

    i think what is missing is. . . (5.00 / 1) (#30)
    by the rainnn on Sun Apr 29, 2007 at 09:33:08 PM EST
    . . .more important than
    what has been found, thus
    far.  i think too much is
    being made -- by very good
    minds -- about this particular
    four word sentence

    [i've been off the grid for a bit. . .]

    i think the e-mail they
    DIDN'T send is more important,
    and more damning, by far.

    that's just my $0.02.

    well-done, one and all!


    Sweet information! (none / 0) (#31)
    by Freewill on Sun Apr 29, 2007 at 09:50:25 PM EST
    Excellent investigative work. This makes a lot of sense! I highly recommend everyone to check out rainn's link. Very nice!

    Immunity (none / 0) (#4)
    by jen on Sat Apr 28, 2007 at 11:35:27 PM EST
    If she is offered immunity, would any of these charges apply?

    I read somewhere that they have not yet offered her immunity and they have the choice to offer it or not up until they issue a subpoena. This sounds like they don't even need to issue a subpoena, so if they don't offer immunity and are not required to issue subpoena, what happens then?i.e. what are her choices?

    Conyers (none / 0) (#6)
    by Edger on Sat Apr 28, 2007 at 11:41:23 PM EST
    House Judiciary Committee granted her immunity last Wednesday.

    Right. That's what I thought as well. (5.00 / 3) (#10)
    by jen on Sun Apr 29, 2007 at 12:28:53 AM EST
    But I was reading this thread at firedoglake and in the comments someone (#6) asked:

    Can they cancel her immunity deal right now? She deserves no immunity.

    CHS answered (#7):

    The deal only goes into effect if and when they issue a subpoena for her, which they have not yet done. So they can cancel the deal at any time before they issue the subpoena. Conyers is playing this one by the book -- and good for him.

    Well, that's true (5.00 / 2) (#13)
    by Edger on Sun Apr 29, 2007 at 06:19:04 AM EST
    and as the NPR article says:
    The committee also voted to subpoena Goodling, but Chairman John Conyers says he hopes she will testify voluntarily. Goodling has previously said through her attorney that if subpoenaed, she would invoke her rights under the Fifth Amendment.
    If I understand it correctly she will be given the immunity from prosecution that they voted to grant her if she voluntarily testifies, but if Conyers has to subpoena her she won't be, and that that is the lever that will compel her testimony under threat of contempt of congress and charges of obstruction. She'd also be open to perjury or and/or lying to Congress charges. Immunity is only, as far as I know, to cover crimes she may have committed in the past related to the investigation. It's not immunity from telling the truth in testimony.

    She has to testify truthfully under the immunity deal.

    re the child pornography (none / 0) (#12)
    by zaitztheunconvicted on Sun Apr 29, 2007 at 02:44:55 AM EST
    So, if a person possesses child pornography and he didn't immediately report and/or destroy it per federal law, it now becomes a crime for him to destroy his own "illicit" images, per Sarbanes Oxley?

    This isn't the smoking gun, folks! (none / 0) (#14)
    by ding7777 on Sun Apr 29, 2007 at 07:05:31 AM EST
    The change in the UPDATED docs is the vacancy in SDGA (United States Attorney for South Georgia ) because Lisa Godbey Woods was confirmed [Jan2007] as a US District Judge.

    The real problem is that the White House allows uncontrolled file distributions in the 1st place.

    Can it be established (none / 0) (#15)
    by Warren Terrer on Sun Apr 29, 2007 at 09:43:26 AM EST
    that the documents she told people to delete are completely gone from the system? Or was a copy kept on her computer or in the archive system?

    Because if those documents turn up, won't Goodling's argument be that she was merely telling the others to delete out of date documents from their own computers due to an update, while the original documents were still kept in the system archives? Hence, there would have been no destruction or attempt to obstruct.

    No. (none / 0) (#16)
    by Edger on Sun Apr 29, 2007 at 10:09:22 AM EST
    It can't. Don't believe anyone who says differently.

    "Sure, we shredded all our records" (none / 0) (#17)
    by scarshapedstar on Sun Apr 29, 2007 at 10:49:20 AM EST
    ...but we thought there were other copies, uh, you know, somewhere else!



    Your link to 15 U.S.C., Section 1519 (none / 0) (#18)
    by Maryb2004 on Sun Apr 29, 2007 at 11:06:23 AM EST
    doesn't work.

    Interesting thought that Sarbannes Oxley would apply to obstruction by the DOJ or its staffers. I don't remember any discussion of that scenario scenario when it was enacted.  

    Look at who the e-mail was distributed to (none / 0) (#19)
    by Freewill on Sun Apr 29, 2007 at 11:15:11 AM EST
    E-mails sent to the following:
    Kyle Sampson, Michael Fiston(ODAG), William Moschelle, Richard Hertling, Rebecca Seidel, Nancy Scott-Finan, Tasia Scolinos, Brian Roehrkasse.

    There is a good possibility that there were e-mails sent using the BCC option that would never appear on the header of these e-mails.

    Subpoena all computers from all those listed above. Subpoena all those individuals above.

    The files that were deleted are not deleted unless all of those individuals understand how to zero-out their hard drives. Unlikely. Very unlikely because Network Administrators would have to work 24-7 maintaining the system because of all the mess ups created by those individuals who are extremely busy fighting terrorism and less concerned about the inner workings of computers.

    Put the heat on everyone on this list. Odds are (and human nature proves this) that quite a few of these individuals will crack trying to save themselves.

    using the BCC option (none / 0) (#20)
    by Edger on Sun Apr 29, 2007 at 11:19:31 AM EST
    just causes them not to display.

    They are still in the email header.

    Yeppers (5.00 / 1) (#21)
    by Freewill on Sun Apr 29, 2007 at 12:01:37 PM EST
    That's why I pointed that BCC option out. It wouldn't appear on the printed header of the printed e-mail. Not so on the e-mail's network header packet. Take the hard drives from the computers, the Network E-mail servers hard drives, and subpoena even the Network Administrators.

    Question: If all of those individuals that are listed as receiving the e-mail actually deleted the files are they not also complicit in destroying evidence?


    Recent experience reveals the first subpoena (5.00 / 1) (#22)
    by oculus on Sun Apr 29, 2007 at 01:34:05 PM EST
    should be served on the network administrator.

    I imagine there a ::more:: than a few (none / 0) (#23)
    by Edger on Sun Apr 29, 2007 at 01:46:33 PM EST
    Network Admins out there who have already backed up ALL those emails - to use to save their jobs - or sell to the highest bidder.

    In the case I worked on, the issue was whether (5.00 / 1) (#24)
    by oculus on Sun Apr 29, 2007 at 02:23:04 PM EST
    the network admins. could "recreate" e mail accounts [even of employees who no longer worked for the agency].  The answer:  a resounding yes.  The recreation did not involve the indiduals' harddrives, only the main frames.  

    Absolutely correct but (5.00 / 1) (#25)
    by Freewill on Sun Apr 29, 2007 at 05:12:07 PM EST
    here's the reason for the hard drives on the individual computers.

    If you look at the Monica Goodling e-mail she lists which documents (MS Word and Adobe PDF files) to delete. She even includes these sentences:

    "These are new or updated USA documents, which can be used with media and friendlies. Please delete prior versions."
    Yes, since they were sent through the e-mail system simply studying that e-mail server would produce those files however, taking the individual hard drives and re-constructing the computer's indexing way to locate the files would show complicity to get rid of evidence. Not only find the files but find out when they deleted those files. There might be something to learn from the actual date these individuals actually did finally decide to delete the files (if they even have).

    My bosses (who are not Attorneys or not even schooled in the legal profession) know very well that they can not order me to do something illegal. I know that if ordered to do something illegal not to do it. These are ATTORNEYS we are talking about. Better yet, these are U.S. ATTORNEYS who were involved in actions to hide evidence. It just adds that much more humor to hear them say "I didn't know I couldn't do that"!

    Turn the heat onto everyone, a leak will boil and the President can't put everyone under the Executive Privilege umbrella.

    Oculus, thank you for sharing your experience with dealings like this. It is so refreshing to hear someone with your experience with computers and the court.


    I have a Programming and a (none / 0) (#26)
    by Edger on Sun Apr 29, 2007 at 05:25:46 PM EST
    Network Admin background, among other things. The last Telecom I worked for had 1800 employees in about 10 cities.

    The internal network  (separate from the network that provided voice, data and video to customers) had 7 MS Exchange Servers (email servers) for redundancy and replication.

    Every single email (with attachments) was replicated across those 7 servers, and all 7 were backed up onto tape every night.

    Most of those emails were from or to other corporate internal networks that operated the same way.

    And then there is the internet with all of the servers at every hop in between being replicated and backed up daily and weekly and monthly.

    ::nothing:: (none / 0) (#27)
    by Edger on Sun Apr 29, 2007 at 05:26:55 PM EST
    is unrecoverable.

    Except (5.00 / 1) (#28)
    by squeaky on Sun Apr 29, 2007 at 05:47:02 PM EST
    Abu Gonzales et al reputations

    Well, ummm.... (5.00 / 1) (#29)
    by Edger on Sun Apr 29, 2007 at 06:12:24 PM EST
    I stand corrected. :-)

    LMAO! (none / 0) (#32)
    by Freewill on Sun Apr 29, 2007 at 09:52:09 PM EST
    Don't give me a bit of credit on knowledge (none / 0) (#33)
    by oculus on Sun Apr 29, 2007 at 11:51:02 PM EST
    of computers.  I was quite surprised at the results of the "recreation."

    Well (none / 0) (#34)
    by Edger on Mon Apr 30, 2007 at 12:31:23 AM EST
    When you delete a file on your own computer, the file is still there, intact, on the hard drive. All that has happened when you deleted it is that that pointer to it in the disk directory has been removed and the disk address of the file marked as available to write into. Saving another file, or the operating system writing to the disk, MAY overwrite that space. Or not. Depending on the amount of time passed and the number of write operations  to the disk the file may still be recoverable. Even formatting the disk may not completely obliterate the file.

    Tortunately for me, it wasn't my emails, but I was (5.00 / 1) (#35)
    by oculus on Tue May 01, 2007 at 01:44:46 AM EST
    "tasked" with reviewing for possible privilege claims an enormous amount of recovered material.  The moral of the story, especially in light of the new federal rules re e-discovery is:  think before you e mail anyone.  If in doubt, don't.