Is That Legal?

I wrote on the same subject recently, focusing on the key Supreme Court decision you mention -- Reiner. I was not particularly impressed with the argument that Reiner supports the validity of the assertion of the Fifth Amendment where the witness maintains innocence. It seems that Reiner cuts a rather narrow path. At any rate, my full analysis of the issue can be found at the referenced link.

http://johnsnyder.typepad.com/john_snyders_errant_thoug/2007/03/goodlings_innoc.html

Does your discuss extend to what Clinton did? He fired them all, and clearly for political reasons. Len

You had me up until the "good faith" part.

Goodling's attorneys invoked the conviction of Scooter Libby -- saying in essence that they don't want their client to be subject to "unfounded prosecutions" like he was.

Whatever one may think about the Libby matter, his prosecution was not -- as a matter of law -- unfounded. A jury of his peers heard the evidence and convicted him. If they had thrown the case out, then Goodling's attorneys might have a legitimate concern about their client being subject to the same type of unfounded prosecutions. The fact that they hung their argument on Scooter Libby -- a convicted man -- indicates to me that their argument is in bad faith.

The "rule" of the Fifth Amendment simply cannot be so lax as to allow any witness who fears a "perjury trap" to never testify. If that were the case, the privilege would be successfuly invoked all the time, and our legal system would grind to a stop. The framers, I suggest, never intended the Fifth Amendment to be applied so broadly. If one fears being caught for perjury, then the answer is quite simple: tell the truth.

Further question: Can one invoke the privilege before a single question is even asked? How would a court determine whether a Fifth Amendment privilege is properly invoked in the absence of the inquiries that comprise the examination of a witness?

ahhhhh, the Dems have started this with their unfounded screaming about Plame and Lewis Libby's faulty memory. Now its logical conclusion is that no conservative Republican should ever speak to any liberal Dem under any oath. The slightest variation of a converation several years old is now considered grounds for a legal proceeding. Even if they win, they lose.

I am not a lawyer so maybe I am misunderstand what you mean.

Are you saying that I can invoke the 5th amendment if I believe that my testimony, even if truthful, can lead to a perjury charge based on that testimony and not on previous testimony? If that is the case then anyone could refuse to testify at any time? Even a grant of immunity would not be enough to compel me to testify because immunity does not protect me from charges of perjury for testimony given under immunity.

I don't see how bad faith can ever be shown in any situation where a fact finding body (grand jury or Congressional committee) is investigating. There will always be the possibility of perjury or obstruction of justice charges even if there is no underlying crime.

How can we be disgusted "over the politicization of the institution of the United States Attorney's Office" when these are politically appointed positions that serve "at the pleasure of the President"?

I mean, is this, or is this not a political position?

ELM: As a person who worked in a U.S. Attorney's Office (District of NJ, 1990-1994), I can tell you that there is a mile of distance between the fact that the appointment of U.S. Attorneys is "political" in the way you describe and the idea that U.S. Attorneys are administration loyalists whose law enforcement decisions are to be controlled by politicians. There is a long history of U.S. Attorney independence -- anybody who has worked in one will tell you so. This administration appears to have tried to curtail that independence, and it is paying a political price for doing so. Appropriately, in my view.

I would just like to point out to ronjo that Libby was prosecuted under a Republican administration by a prosector who is subject to the same political pressures that the fired USAs were; ie from a Republican administration, not a Democratic administration.

This is not a very strong argument. Reiner involed a murder (an actual crime!), and the key witness wanted immunity from fear of prosecution for that crime. Here, there is no crime (at least not one that the public knows about...maybe Goodling knows something we don't know?). Fear of prosecution for perjury can't be the basis for invoking the Fifth. If that were the case, nobody would ever testify in any trial.

ELM: There are many other possible bases of criminal exposure here. And her lawyer may know of some we can't think of. See my update.

"Fear of prosecution for perjury can't be the basis for invoking the Fifth. If that were the case, nobody would ever testify in any trial."

And yet, that's exactly what the Fifth was put in place for. Prosecutors would be able to demand a defendant confess guilt or instead be guilty of perjury. As we've seen in the Libby case, any time two people under oath disagree about the facts, it can be successfully argued that one of them lied about those facts.

I learned from Martha Stewart that you just don't talk to investigators unless they immunize you. And even then you don't say a word without running it past your attorney first.

The problem in large part lies in the fact that one can be prosecuted for making false statements that were not made under oath. These are very bad laws, and the result, which is becoming more prevalent, that people understandably are extremely reluctant to cooperate with any government official. If anyone from the Federal Government ever makes an inquiry with me, on any matter whatsoever, I'm not saying a word until I get a subpeona and immunity.

Anybody who even talks to a IRS agent directly, on a very minor matter, is being very, very, foolish.

I'm having trouble seeing how this isn't a slippery slope to avoid Congressional accountability.

And as a technique it seems to work to the benefit of administrations breaking the law instead of administrations trying to comply with the law.

Fear of prosecution for perjury can't be the basis for invoking the Fifth.

Ms. Goodling may not invoke the Fifth to prevent prosecution for testimony she would otherwise be required to give; she can invoke the Fifth to prevent testifying about her prior actions -- even if she does not believe those actions were unlawful -- as long as she believes such testimony might increase her jeopardy. She must have some plausible basis for believing her prior actions might viewed as criminal by someone else. Does she have any basis for such a belief? How about the statements of members of the Committee to the effect that prior DOJ testimony was untruthful and misleading? Couldn't she reasonably fear that the Committee might determine that her assistance in providing this misleading information was criminal, particularly if she continued to insist the information was accurate? (The Committee would then refer the matter to the DOJ for prosecution and put pressure on the DOJ to prosecute.) The Committee is asking her to provide testimony about a series of events that members of the Committee have already said was criminal in nature. How could the Fifth Amendment not apply? Note: She need not agree with the Committee that the information provided was false and misleading. All she need fear is that, no matter how truthfully she testifies, members of the Committee may conclude that her actions in helping to prepare information the Committee believes false were criminal. The Fifth protects the innocent as well as the guilty.

And as a technique it seems to work to the benefit of administrations breaking the law instead of administrations trying to comply with the law.

It also seems to flow from the criminalization of policy differences. The problem is that there is little reason to believe that the other side will act in good faith. Both political parties are to blame. Both have used the Congressional investigations with the intent of generating the "need" for a special prosecutor.

Would any Democratic member of Congress being willing to state publicly that in his opinion, no criminal prosecution should result from this scandal? If not, then why should the refusal of any member of the administration to testify be questioned?

"Sure we're launching a partisan witch-hunt, but if you're innocent, you have nothing to worry about."

Who would prosecute her? Little Al? He's as likely to prosecute her as he is to be prosecuted himself. She may be subject to being thrown under the bus, but not to a criminal charge.

The trouble I have with the invocation of the Fifth here is that the letter suggests she is refusing to testify because she could be prosecuted for perjury even if her testimony is truthful. That is at least a theoretical possibility, but it is in every case. A subpoena would be meaningless if a potential witness merely had to fear a perjury prosecution for the sought-after testimony to avoid testifying.

The trouble I have with the invocation of the Fifth here is that the letter suggests she is refusing to testify because she could be prosecuted for perjury even if her testimony is truthful.

I think the letter is problematic with regard to understanding the legal basis for asserting the 5th in this case. The practice of Congress is to not call a witness if the witness makes it known in advance they will refuse to testify by claiming 5th Amendment protection. (Sometimes Congress will call witnesses anyway, just for the theater of having a witness repeatedly refuse to answer questions.) So, that's all the letter had to say -- Ms. Goodling plans on taking the 5th.

The letter is much longer than that. Why? My guess is that Ms. Goodling wanted to make it clear that she believes she has done nothing wrong and is only asserting the 5th because she lacks faith that she will be treated fairly by the Committee. That's not a legal argument. It's a political argument. It's the political argument that makes it difficult to see the legal basis for asserting the 5th in refusing to testify before the Committee. However, the legal basis is fairly clear: Members of the Committee have said they believe the DOJ has given false and misleading testimony. Ms. Goodling helped prepare that testimony. The Committee wants to interview Ms. Goodling about her involvement in activity some members of the Committee have suggested may have been criminal. Ms. Goodling and her attorney believe that, even if she answers truthfully, Ms. Goodling's testimony may cause the Committee to believe her prior actions were criminal (which would lead to a criminal referral to DOJ and political pressure to appoint a special council to prosecute the matter).

Who would prosecute her?

Uberattorney General Schumer would demand, and get, a special prosecutor along the lines of Fitzgerald to prosecute his alleged process crimes.

The problem that we now face is that the entire subpoena process has become so politicized that even the lawyers can’t figure out if someone can invoke the Fifth Amendment legally. Due to politicization and partisan politics, the ability of our Congress to hear testimony under oath in front of a committee has been compromised. Go back ten years, when the Republicans had the Democrats “on the ropes”. Any Democratic official called before a Congressional Committee would have to think twice before testifying under oath. Now the tide has turned and it’s even worse. Now the political hatred is so strong, Republican official are afraid to testify under oath, and if forced to now must invoke the Fifth to protect themselves. If I were a Republican official subpoenaed by a hostile Congressional Committee, I would seek political asylum in some other country before appearing. Clearly the system is broken and until the politics can be removed from the system it will remain broken.

At present there has been no criminal charge presented.

As a big stretch, consider the protection against unreasonable search and seizure. Without the reasonable belief that a specific crime is being committed in a residence, police will (hopefully) not be able to obtain a warrant to search one's residence.

Since there is no charge being made at present, I would hope that Ms. Goodling stands by her intention of refusing to testify. I would give her 'mind' even greater protection against an 'unreasonable search' than I would her domicile.

The implication that you can potentially face jail for not participating in an investigation which currently has no criminal charges is chilling.

Just as I would refuse the govt the right to search my house without a warrant, I would not allow them to search my ability to recollect.

I gather that the FBI and others use handwritten notes when interviewing people about a possible crime or other situation.
So let's say a person is interviewed and tells the truth.
Later, that person is under oath and tells the truth. Any discrepancy between the FBI's notes and the statement under oath could be construed as having lied to federal agent. Or an congressional investigator or something else.
So. If I have been interviewed, the likelihood that a prosecutor could find a lie is one hundred percent even if I told the same story both times and it was true.

I am only a Geologist and really know little of the legalese of the 5th amendment application by this government employee Monica Goodling. What I do know is if she was my daughter I would be ashamed of her actions toward Congress and the American people. She would have been taught by me from the earliest age to know the difference between right and wrong, to always be able to fully explain her actions when asked, never hide the truth and when she did do something wrong she was to admit what was done and accept the consequences. This is how a good loving family operates and I would expect her to take these same values with her to the highest levels of any employment and behave accordingly. While she might have done something wrong which is in the end usually always forgivable, to disregard one of the foundation blocks of any society, and that is "accountability for one's action", would make me cry and cry hard. In this particular case how should any American feel when a employee of the people, elected or otherwise, will not hold themselves accountable for any of their work related actions to their employer, the American people?

Monica Goodling, please explain to your father and your employer, the American people, what you were doing during the time you were working for them. This is the right thing to do.

I'm not a lawyer, but I find this discussion very interesting. The question I have is why doesn't Goodling do what Sampson did? Testify, but say she doesn't know when a troublesome question was asked. Is Sampson in the same jeopardy as Goodling? I don't see much difference between the two. Unless of course their testimony doesn't mesh. Which wouldn't be suprising and would really look bad.

I had to go all the way back to this post to find an appropriate place to ask the question. This astonishes me since you worked in the DOJ. My question is doesn't it really upset the career prosecutors in the DOJ, both current and former, who now face such loss of respect due to this scandal? Even if you were one of those who supported the politicization, you now are faced with the fact that this line of your resume has been devalued. Why has Gonzales been the first to discuss this in his testimony this morning (although I think him bringing it up to exonerate himself is laughable)?