Can Monica Take the Fifth?
Does Department of Justice White House liaison Monica Goodling have the right to invoke the Fifth Amendment against self incrimination in the U.S. attorney scandal.
Absolutely.
But has Goodling properly invoked the Fifth?
Apparently not.
This is because Goodling’s lawyer is claiming that she is ready, willing and able to tell the truth, but will take the Fifth not to avoid incriminating herself, but because he is fearful that she will be hit with a perjury rap because the Democratic-controlled Senate Judiciary Committee is on a witch hunt.
The Fifth Amendment states that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.
I’m not a lawyer (and I didn’t stay in a Holiday Inn Express last night), but there’s nothing there regarding partisanship or perjury and the argument being used by Goodling’s lawyer seems to be silly on its face. By this wacko reasoning, Scooter Libby wouldn’t have gotten in so much trouble if he had taken the Fifth.
Besides which, isn’t it downright inexcusable for an Justice Department official to plead the Fifth as if she was a white-collar thug like Ken Lay or some murderous Mafiosi?
This is what political columnist Dick Polman says:
To put it charitably, the Bush administration already has a reputation for being less than truthful on a wide range of matters – and now we have a high-ranking Justice Department official, the legal liaison between Gonzales and the White House, opting to clam up. Even for many conservatives, this is too much.
There’s a lively discussion going on over at Josh Marshall’s Talking Points Memo about this key point. We have Josh, of course, to thank for doggedly pursuing a scandal that Republicans claimed was much ado about nothing.
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11 Responses to “Can Monica Take the Fifth?”
That is probably a very weak argument. She can take the fifth and does not have to explain her reasons. What Congress can do, if it really wants to investigate instead of scoring political points, is to give her immunity for her testimony.
SD- Are you an attorney? Unless you are, you probably don’t know if this is an acceptable use of the 5th. It seems to set a dangerous precedent, because if it flies, anyone can claim they have the right to refuse to testify to Congress, because the body, by nature, is political. Which hearigngs have been held that weren’t political?
It would be interesting to find out if this has ever been tried before or if its a new ploy.
Also, if she is granted immunity, doesn’t that mean that she could tell a fabricated version of events surrounding the firings, and escape a perjury rap? She should resign her position, then ask for immunity–otherwise it would look like she was still forced to protect others at DOJ.
There are two avenues that the Senate committee’s lawyers could persue if Goodling cops a Fifth for dubious reasons: They could request a court hearing on the issue or grant her immunity.
The larger issue is that the stench from this scandal has become breathtaking. Like I said, Goodling is not some thug. She is a nice Christian lady who has been taught not to lie and has been snared in yet another politics-over-policy scandal not of her own doing.
Methinks she needs to quit so she can spend more time with her Bible.
According to people at BallonJuice, immunity is only for specified prior crimes. Perjury would still be a crime if she lied under oath.
I have absolutely no clue what the law is, but refusing to testify because you’re afraid of perjury doesn’t sound like being a witness against yourself in the slightest — I”m sure it wouldn’t fly in court and she’d be held in contempt. Still, you know they’re going to rant about this for a while and then give her immunity anyway.
http://volokh.com/posts/1174946183.shtml
It’s definitely a witch hunt. But some Bush people are wearing pointed hats and riding brooms, too. I see this as a feedback loop. The Bush people aren’t merely being uncooperative, but are starting to exude desperation — which is blood in the water insofar as the desperation (weakness) whets the appetites of the Dim sharks or piranhas.
Maybe if she tells the truth, she would be forced to admit that she advised McNulty to be less than forthcoming with Congress about the firings. She was responsible for briefing him before his appearance- so maybe encouraging someone to lie in a Congressional hearing could also be construed as a lie.
Contrast this with Plame, who could not wait to tell her story under oath to Congress.
How sad if 2 different Monicas were to bring down two different presidencies!
Here’s the thing: She has not actually invoked the fifth amendment;
she has merely signaled her inent to do so when, and if,
she were to be questioned under oath regarding these matters.
Doing so cannot stave off the compelling power of a subpoena to testify.
She cannot use the fifth amendment to avoid questioning,
only to avoid answering when questioned (if applicable for even that).
You all know this fact darn well, and have just kinda overlooked it
in the hubbub of, “oh my gosh, she’s claiming the fifth!”
Maybe this is a ploy to head off being subpoena’d by congress to testify under oath;
maybe it really is just a signalling of what she intends to do if questioned.
Bring her in anyway.
“This is because Goodling’s lawyer is claiming that she is ready, willing and able to tell the truth, but will take the Fifth not to avoid incriminating herself, but because he is fearful that she will be hit with a perjury rap because the Democratic-controlled Senate Judiciary Committee is on a witch hunt.”
How does one get nailed with a perjury charge if they tell the truth? They don’t. She’s full of shit and intends to lie if she speaks at all.
That’s a rather simplistic view at best. Try and discuss something that happened at your work last month covering weeks and/or months of meetings and discussions without ever once mixing anything, making any mistakes, misstatements, or confusing anything. If you are telling this story to someone you feel is predisposed to try and prosecute for any mistake then worry seems reasonable. You will recall the Libby perjury occurred after the special prosecutor new who the leak was and that there was no crime. At this point in time while it may be misguided it hardly begars belief that some in the Bush administration may have developed a bit of a bunker mentality. It sure seemed to happen quickly enough to those in the Clinton admin. so lets keep the feeld level instead of tilting it so hard to our favorate side.
Eric- In the Libby case- it wasn’t accidental. Fitzgerald gave him multiple chances to correct the record, but even through the trial Libby claimed to be the victim of memory loss. This was obviously not the case, since he and Cheney obsessed over Wilson’s op-ed for months.
Libby chose to lie to Fitzgerald to keep Cheney’s role in the affair hidden.