Attorney General Alberto Gonzales’ liaison with the White House will refuse to answer questions at upcoming Senate hearings about the firings of eight U.S. attorneys, citing her Fifth Amendment protection against self-incrimination, her lawyer says.The top aide is Ms. Monica Goodling, counsel to el Generalissimo Gonzo. Asserting the fifth amendment privilege is not an admission of guilt. No inference of guilt should arise from the assertion of the privilege. Yeah, sure.
Here’s what we know so far: her attorneys have spoken her. What they said is, of course, confidential. "I have decided to follow by lawyer's advice and respectfully invoke my constitutional right," she said in a statement to the Senate Judiciary Committee.
Wait a second! Did she just waive her confidentiality by revealing the substance of her conversation with her attorney? I am just asking.
Anyway, we do know that at the conclusion of that conversation, the attorneys had a well-founded fear of prosecution. This is a prerequisite to the assertion of the privilege. When you take the fifth, you are saying something much more than, “No thanks, I would rather not testify.” You are saying that if you get on the stand, take an oath, and tell the truth, you might just get your tit in a wringer.
Her lawyer invoked the case of Scooter Libby in support of the argument that even innocent people can get caught up in a prosecution for perjury. This strange assertion was re-iterated on Hardball by John Yoo, a former Deputy Asst. Attorney General, who apparently is now paying the mortgage by shilling for the Party of Bush.
What these worthies seem to have forgotten is that Scooter Libby had a dream team defense and still managed to get convicted of perjury and obstruction of justice beyond a reasonable doubt. Strange, to say the least, that Ms. Goodling would like to be lumped with that convicted felon.
Of course, what she would seem to be trying to suggest is that if she tells the truth, the politically motivated powers that be might still prosecute her. Interestingly, this argument was explicitly rejected in the case of United States v. Susan McDougal. Yes, that Susan McDougal, who refused to testify at a Ken Starr chamber proceeding in relation to the Whitewater non-scandal.
In holding that Ms. McDougal had no fifth amendment privilege, the court noted that the order compelling her to testify provided:
That no testimony or other information compelled under this order (or any information directly or indirectly derived from such testimony or other information) may be used against SUSAN H. McDOUGAL in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with this order.Hey, let’s give Ms. Goodling use immunity for her testimony! That would take away her privilege against self-incrimination.
Of course, before we do that, we might want to know what is it for which she has a well-founded fear of prosecution. Since Ms. Goodling has decided to talk about the advice her attorney gave her, I wonder if she would answer just a few questions about that advice.
As I explained in The Pleasure of the President there are two different categories of crimes that might have been committed. First, there’s the whole misleading Congress thing. It’s serious, and it’s not something that Congress likes to overlook. But it is also a little tenuous. Let’s not forget that Goodling didn’t testify in Congress. Sure, as I pointed out, Kyle Sampson may be on the hook because his failure to prevent Deputy Attorney General Paul McNulty from misleading Congress. But I am not feeling Ms. Goodling had a role to play in McNulty’s testimony before Congress. Tell me if I am wrong.
The other category of crime that might have been committed in connection with the firing of eight U.S. Attorneys has to do with anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations. Obstruction of Justice is a crime under 18 U.S.C. § 1512 (c).
You know, the funny thing is that if Ms. Goodling’s attorneys have a well-founded fear of prosecution for obstruction of justice, then you just got to think someone else ought to be equally fearful. This crime, if it was committed, wasn’t committed by Ms. Goodling acting alone.
So, Ms. Goodling, tell us. What are you afraid of?
“… and tell ’em Big Mitch sent ya!”