She’s Throwing Sand In Our Eyes

March 27, 2007 at 7:26 am | Posted in American politics, Bush Administration, Congress, Democracy | 2 Comments

Underling Monica Goodling, a Justice Department official under Gonzales, subpoenaed to testify in front of Congress this week has refused to testify, claiming the Fifth. Her justification is pretty flimsy:

“The public record is clear that certain members of the Senate Judiciary Committee have already reached conclusions about the matter under investigation and the veracity of the testimony provided by the Justice Department to date,” John Dowd, Goodling’s lawyer, said in a letter to the committee’s chairman, Sen. Patrick Leahy, D-Vermont.

The letter said Goodling learned that a senior Justice Department official blamed her and other Justice Department officials for any misleading statements he had made to one of the Democratic senators who has pushed for answers about the firings, Sen. Chuck Schumer of New York.

Yeah, those meanies! Seriously lame excuse. But see, here’s what she is doing. She is throwing sand in our eyes. She is actually obstructing justice by refusing to testify. She knows things that might lead to some crime and she refuses because the environment is hostile. Well, that hasn’t stopped people before from testifying.

Talking Points Memo readers have chimed in on what they think:

First, TPM Reader TB …

A party can request a hearing (in federal or state court) to examine whether the party invoking the Fifth has done so properly. Goodling’s attorney’s letter does not provide a valid basis for invoking the Fifth. You can’t invoke the Fifth to avoid perjury charges (or obstructing justice with the selfsame testimony). (I have the cases here, if you want them.) You can’t invoke the Fifth because you think the Committee is on a witch hunt. Etc.

They shouldn’t let Goodling get away with this. She either is refusing to providing testimony because she may be testifying about some crime she has previously committed (which is a valid reason for taking the Fifth) or she isn’t. If she is, and a Judge so determines, then fine (and goodbye to her attorney’s ridiculous GOP talking points), and if she isn’t, she should be compelled to testify under subpoena.

The funny thing is she may be obstructing justice (protecting others) by refusing to testify under a bogus claim of needing to take the Fifth.

Talk to some attorneys who work with Congressional committees and see which court they can take this to — I would suspect the D.C. Circuit.


TPM Reader EJ makes the same point …

I read the letter from Ms. Goodling’s attorney, and it seems rather odd to me. He says that Ms. Goodling will not testify because she fears that, even though telling the truth, she may face perjury charges due to the hostility of Democrats on the Judiciary Committee. The Fifth Amendment, however, has nothing to do with perjury or with feared partisanship. Rather, it states a privilege against self-incriminating testimony. If the Fifth were to be accepted every time a witness feared a perjury indictment, we would have very few witnesses, indeed. I’m far from an expert on this matter, but I wonder if the Fifth has been properly invoked at all here.

Orin Kerr at Volokh Conspiracy doesn’t think Ms. Goodling has a justifiable reason to invoke the Fifth:

I’m not sure I follow the rationale here. The Fifth Amendment privilege is available if the witness has reasonable ground to believe that her testimony will be used against her to prove an element of a crime. Brown v. Walker, 161 U.S. 591, 598 (1896). What crime might Goodling have committed? I’m also puzzled by the comparison to the Libby case. Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity. Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that’s not a valid basis for the privilege. See, e.g,, United States v. Seewald, 450 F.2d 1159 (2d Cir. 1971). Or perhaps she is taking the Fifth because she lied before, and her testifying truthfully this time will reveal her earlier lies?

UPDATE: According to the first page of the letter Goodling’s counsel sent to the Senate, the rationale for taking the Fifth seems to be that Congress isn’t being very open-minded and Democrats don’t trust the Bush Administration. That’s a new one; I don’t think I’ve ever come across that one before. (Maybe there is more on the other pages of the letter not yet available?)

ANOTHER UPDATE: A few courts have discussed the theoretical possibility that there is some kind of “perjury trap” defense that might apply when a witness is hauled before a tribunal just to see if the witness can be tricked into comitting perjury. Courts have hinted that setting such a perjury trap might violate the Due Process clause. However, I don’t think any court has ever actually found a perjury trap; courts invariably find a government interest that allows the testimony, and generally do not need to reach whether such a defense exists. See, e.g., Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir. 1994). Perhaps that’s what Goodling’s lawyer has in mind?

YET ANOTHER UPDATE: The link to the letter now includes the entire letter, which in turn relies heavily on Ohio v Reiner. I don’t see how Reiner is helpful. That case just says that a person can both claim that they are innocent of any offense and yet also claim the Fifth Amendment privilege. Well of course; a person can say whataver they want about their culpability without changing whether they have a privilege. But the Fifth Amendment issue is whether a person has substantial reason to fear that their truthful testimony will help lead to them being prosecuted. Goodling’s letter doesn’t give a legally valid reason for that fear, at least as far as I can tell.

Orin Kerr hints at the real point, however:

On the other hand, this may just be a way of slowing Congress down.

That’s EXACTLY why. She is throwing sand in our eyes, America. Scott Fitzgerald said it best in the Scooter Libby trial:

And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure what happened and somebody blocked their view.

Don’t let the Bush administration do this to you, Congress. Press them hard. Don’t let them get away with it.


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  1. Oh, I just love how Goodling tried ever-so-hard to make it look like she’s nobly standing up to those evil, vile and awful Democrats in Congress who will, no doubt about it, twist her words to mean things that she never in a million years will have intended them to say at all, and that, by so doing, she’s standing up for liberty, and Mother and apple pie and baseball and seventh inning stretches during which the crowd gets to sing “Take Me Out To The Ballgame” with the ghost of Harry Carey.

    The use of the phrase “perjury trap” is particularly offensive, and anyone who buys that line of thinking, or hopes that any other American with an IQ over room temperature will buy that line of thinking should immediately be stripped of their US citizenship and be deported to the nearest nation accepting CIA “rendition” flights.

    The only thing one has to do in order to avoid those nasy perury traps is… tell the truth.

    What a concept.

  2. Take two: “nasty perjury traps is… tell the truth.”

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