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Can Justice Department Official Monica Goodling Take the Fifth?

Monica Goodling, a Justice Department official, invoked the Fifth Amendment when called to testify under oath before a Senate panel investigating the December 2006 purge of eight U.S. Attorneys. But bloggers aren't remaining silent about Goodling's decision.

As this account from the New York Times (3/26/07) reports:

Monica Goodling, the Justice Department’s White House liaison, who helped coordinate the dismissals, asserted her Fifth Amendment protection against compelled self-incrimination in a letter that her lawyer sent to the Senate Judiciary Committee. In the letter, Ms. Goodling’s lawyer, John M. Dowd, questioned the fairness of the panel and cited the possibility that she might be a witness in a criminal inquiry, although there is currently no known criminal investigation into the dismissals.

Some bloggers either don't buy or understand Goodling's approach. At Above the Law, David Lat asks:

We're going to play unfrozen caveman legal commentator, and ask: Based on what we currently know about the U.S. Attorney firings, how could Goodling's testimony expose her to criminal liability, to place her in a position to invoke the Fifth Amendment? What are we missing here?

Orin Kerr says this:

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.

On the other hand, White Collar Crime blog reminds us:

Now if this had taken place in a corporation that was under investigation, legal counsel for the corporation would be calling the parties in and asking the employees to answer questions. Either internal or external counsel would be investigating to determine if there was wrongdoing involved in the activities.  In all likelihood the individual would have no attorney-client privilege in a world where deferred prosecution agreements allow the corporation to act as mini-prosecutors and turn over evidence of the individuals to the government.  And if the individual refused to speak with counsel - the result would be - you're fired.  Will that happen here? And perhaps, more importantly, should that happen here?  What it is important to remember here is that we are all entitled to exercise constitutional rights, even those who work at the Department of Justice.

By the way, if you're looking for a way to track the emerging developments regarding the U.S. Attorney firings, check out the new blog, Gonzales Watch.

Posted by Carolyn Elefant on March 27, 2007 at 03:07 PM | Permalink | Comments (0)

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