Monica Goodling, Attorney General Alberto Gonzales’ senior counsel and White House liaison, and a woman intimately involved in the process whereby 7 US Attorneys were “purged” on December 7, 2006 (a date that will live in infamy, no doubt about it) has stated her intention to plead the Fifth with respect to any questions she may be asked by the Senate Judiciary Committee.
The relevant question to ask is this one:
Can Ms. Goodling assert her 5th amendment right against self-incrimination and refuse to testify about her role, and the role of others at the White House and at the Department of Justice, regarding the US Attorney firings?
(cont.)
UPDATE below the fold
Why Goodling Says She Won’t Testify
As you may know, the Fifth Amendment to the US Constitution includes a clause which prohibits the government from compelling testimony from any witness where he or she is being asked about matters that would incriminate them, i.e., to testify regarding possible criminal acts they may have committed. So, what reasons has Goodling, through her attorney advanced to justify pleading the Fifth?
Goodling, through her attorneys, has indicated she will refuse to testify about any matter involving the firing of the seven US attorneys, and will plead the 5th, based on the following reasons (summarized below):
1. The Democrats in Congress, and particularly those who are members of the Senate Judiciary Committee and the House Judiciary, have already pre-judged the testimony of anyone from the Department of Justice on this matter.
2. Senator Schumer is using the hearings to advance the interests of the Democratic Party.
3. The fairness and objectivity of the Senate Committee has been called into question by its ranking minority member, Senator Specter.
4. She’s aware that a senior Justice official (presumably Deputy Attorney General Paul McNulty) has blamed her for the false and inaccurate testimony he gave to the Committee in February.
5. Testifying before such a hostile tribunal as the Senate Judiciary Committee might result in charges of perjury being brought against her at a later time, even if she testifies truthfully and fully to what she knows.
Are any of these sufficient reasons to claim the privilege against self-incrimination set forth in the Fifth Amendment? To give a proper answer, we need to understand what exactly the right against self incrimination is, and under what circumstances it applies.
The Origins of the Fifth Amendment briefly described
The primary reason for this provision in the Fifth Amendment was the Founders’ intent to prohibit government from using coerced confessions at trial to obtain convictions. The right against self incrimination relates back to that period in English history where the King could arrest someone, slap them in irons, throw them in the Tower of London, and set the Royal torturers loose until the poor prisoner confessed whatever crime the Crown alleged that he or she had committed.
As you can imagine, it was a rather hard won right, and one taken very seriously by that first generation of Americans who sought to establish not only a Democratic Republic, but a government of limited powers over its citizens. Protection of individual liberty was the reason the Bill of Rights came into existence in the first place. The various states were reluctant to turn over so much power to the federal government, unless they were assured that it could not abuse the rights of individuals as the British crown had done in the years prior to the Revolution. Furthermore, people wanted to assure themselves of all of those rights which previously had been granted to British subjects under common law, Parlimentary statute or royal decree.
Scope of the Right Against Self-Incrimination
Let me put this as simply as I can. The right against self incrimination under the 5th Amendment is not without its limits, particularly when it comes to the question of testimony before Congress which has been compelled by subpoena.
First, it doesn’t allow you to refuse to testify about matters which involve the commission of possible crimes by others. Put another way, to the extent you are being asked questions regarding the actions of others, and not about your own actions, your 5th Amendment privilege to refuse to testify does not apply.
The one exception to this rule is where your testimony about another person would also invariably incriminate yourself, as well. For example, consider a criminal conspiracy where the actions of each participant in the conspiracy are imputed to the other conspirators. In that case, one could arguably assert the right against self-incrimination with respect to testimony about any of the other alleged conspirators, particularly if that testimony would allow the government to identify you as a member of the conspiracy.
Second, the right against self-incrimination doesn’t prevent you from testifying because you might perjure yourself. Unless there is some past act which could lead to an indictment, some underlying crime in other words, in which you could be incriminated as a result of what you might disclose on the witness stand, the mere fact that you might lie under oath while being questioned is not a sufficient reason to invoke the privilege. If that were so, everyone could lawfully refuse a subpoena on the grounds that they might conceivably lie on the witness stand.
Third, the privilege does not apply in situations in which the witness is given immunity from prosecution arising out of his or her testimony. At law, there are two types of immunity a tribunal (a court or a Congressional Committee) can give a witness.
The first type is called “transactional immunity” and it immunizes the witness against any and all offenses that might flow from that testimony. It’s the proverbial “Get out of Jail Free Card” of immunities. Whatever you testify about cannot be the subject of a later prosecution — period. For that reason, prosecutors are often reluctant to give a witness such a broad grant of immunity, unless what they are receiving in return is absolutely necessary to convict a “bigger fish.”
The second type of immunity is what is known as “use immunity.” Use immunity only “immunizes” the witness from having his or her testimony used as a basis for a criminal indictment. If the prosecution can show that the alleged crime is based on evidence that was not “derived” from the immunized testimony, then the prosecution may indict the witness at a later date for the crimes he or she testified about. Obviously “use immunity” is not as desirable from a witness’ standpoint.
However, the Supreme Court, in its 1972 decision in Kastigar v. United States, held that so long as a witness is granted use immunity, the privilege against self incrimination does not apply.
[T]he power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, [FN7] the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. […]
Petitioners contend, first, that the Fifth Amendment’s privilege against compulsory self-incrimination, which is that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself,” deprives Congress of power to enact laws that compel self-incrimination, even if complete immunity from prosecution is granted prior to the compulsion of the incriminatory testimony. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, 161 U.S. 591 (1896), and Ullmann v. United States, supra, decisions that uphold the constitutionality of immunity statutes. [FN22] We find no merit to this contention, and reaffirm the decisions in Brown and Ullmann. […]
We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted.
Can Goodling invoke the Fifth Amendment?
To answer my own question, no, I do not believe so, at least not for the reasons given by her attorney.
If Goodling is guilty of no crime, she has nothing to fear from her testimony. Certainly she cannot claim the privilege in order to prevent lying to Congress, thus perjuring herself and/or obstructing Justice.
In like manner, if no crime was committed in the firing of the US attorneys, as the Justice Department and the White House have repeatedly claimed, than any matter to which she testifies truthfully would not incriminate her. The fact that the Democrats on the Senate Judiciary Committee may be hostile, or that one of her superiors claimed she failed to provide him with all the necessary facts about the firings before he testified before Congress, are not sufficient grounds, in and of themselves to refuse to testify before Congress.
That is, they aren’t sufficient unless she has reason to believe that a crime or crimes have indeed been committed by her superiors, crimes in which her own testimony could implicate her. Although her attorneys are not saying this, the only reasonable inference one can draw from her assertion of the privilege is that a crime or crimes have been committed, for which she doesn’t want to become the administration’s “fall gal” (as she perceives Scooter Libby was made the “fall guy” for Plamegate).
However, regardless of whether her assertion of the privilege is justified under the facts and relevant precedents, she can still be required to testify if the Senate Judiciary Committee agrees to grant her “use immunity” for whatever she has to tell them. In that case she must either take the oath and answer questions from all those mean old, “hostile” Democratic Senators, or she can refuse and risk being held in contempt of Congress. Once immunity is extended she has no other choices.
The only relevant case cited by Goodling’s attorney in his letter announcing Goodling’s intention to plead the fifth is one from the US Supreme Court (on appeal from the Ohio Supreme Court — ed. correction), in which immunity was granted to a witness who was being painted by the defense in a manslaughter case as an alternative murderer to their client. Immunity was granted by the trial court, and the witness testified against the defendant. The issue on the defendant’s appeal of his conviction was whether a grant of immunity to the “innocent” witness was proper. The Ohio Supreme Court said it was. This case, therefore, stands for the proposition that extending use immunity to Goodling would be permitted even of she is innocent of any crime under circumstances where others may be trying to pin the blame for wrongdoing on her.
I’m certain the former prosecutors on the Senate Judiciary Committee are well aware of this fact. Indeed, I’m willing to bet that they are discussing the grant of immunity to be extended to Goodling as we speak. So, one way or another she will have to appear before the Senate Judiciary Committee. It’s only a matter of how far she is willing to go to destroy her career and her future in order to cover up for the actions of those in the White House (Rove? President Bush?) who are ultimately responsible for this blatant corruption of our justice system for their own, and their party’s, benefit.
An earlier version of this diary was posted at Booman Tribune.
Update [2007-3-27 16:39:3 by Steven D]: Over at Talking Points Memo, one of Joshua Marshall’s emailers, BK, points us to the only viable basis for invoking the Fifth Amendment which is described in Goodling’s attorney’s letter:
Monica Goodling does have a good faith basis for pleading the Fifth Amendment – just not the ones in her lawyer’s letter that are getting all the attention.
Under the federal False Statements statute, 18 USC 1001, it is a felony to cause another person to make a false statement to Congress. Since McNulty has allegedly told Senator Schumer that he made a false statement to Congress based on information provided to him by Monica Goodling, Goodling could very well be prosecuted for a Section 1001 violation.
All the rest of the crap in her lawyer’s letter is intended to sooth as much as possible WH anger at her for invoking the Fifth.
Sounds good to me.
