All the buzz yesterday in the case of the mysteriously disappearing US Attorneys was about one Ms. Monica Goodling, graduate of Regent University, The nation's academic center for Christian thought and action(tm). I've always found it to be rather funny that so many Bush appointees come from these religious colle- wait, no I don't. I don't think it's funny at all. But that's another diary. This one is about Goodling's attempts to subvert justice by Pleading the Fifth... and yet simultaneously claiming that she is innocent of anything.
(cross-posted at Some Notes on Living. Do stop by sometime.)
Anyways, even though there is ample email evidence already released from the DoJ which shows Goodling as being right in the middle of this scandal, her lawyer and she have decided that Goodling is going to Plead the Fifth during her appearance this week in front of the Justice committee. Naturally, this is somewhat disappointing to those of us who were dreaming of watching her put her Regent's degree to use spinning, ducking, and weaving like a mad woman in front of a panel of pissed-off Senators who are looking for heads. But tonight, I had a thought: I'm not even sure Goodling can take the Fifth in this case - not without admitting that she would be implicating herself for a crime.
I started studying up on the 5th amendment, when it had been used, big historical cases and the like - turns out that it was taken in front of Congress during the 50's by those who were dragged in front of the infamous House Un-American Activities Committee, and by a few mobsters. Not exactly the best company. Just when I was about to give up for the evening, what do I see over at TPM?
In any case, if you look at the letter Goodling's attorney sent the committee, the essence of his argument is that the committee has relinquished its legitimacy as an investigative forum and that she has thus unilaterally decided that she will refuse to testify. (As part of the argument for not testifying, Goodling's lawyer notes that "it is not uncommon for witnesses who give testimony before the Congress to face criminal investigations and even indictments for perjury, false statements, or obstruction of congressional proceedings.") It amounts to a sort of witness's nullification.
Interestingly, or perhaps revealingly, at the end of the letter, John Dowd, Goodling's attorney asserts that "we have advised Ms. Goodling (and she has decided) to invoke her Constitutional right not to answer any questions."
This is more than a semantic point. The constitution says nothing about a right not to answer questions. The actual words are that no one "shall be compelled in any criminal case to be a witness against himself" -- or in the more modern parlance, your right against self-incrimination. This is why you lose your 'right not to answer questions' as soon as you're granted immunity.
I'm pretty convinced that Monica Goodling does not have the authority to remove the ability of the Justice oversight Committee to do its duty, that is, to question people who are brought before it under duly enacted subpoenas about relevant testimony. The Fifth amendment does not allow you to simply blanket deny any and all questions from a body of authority (such as a Grand Jury or Court, or in this case, Congress) on any topic, but only specific topics in which you have a possibility of implicating yourself in. What does it say about the Department of Justice, if Goodling claims she can't answer anything at all about her job, without implicating herself?
As long as Goodling tells the truth, she should have nothing to fear at all - unless she's involved in illegal activities, that is. And I even predict we will hear the inevitable cries of 'it's a perjury trap!' But how could it be? She's never testified before, there's no record to measure her statements up against and try an trap her in a lie. And even if the Committee tried to do that, all they could do is refer the matter... to the Justice Department!
Marshall finishes up:
Just watching this from the outside, it looks as though that is that the bad act she's afraid to testify about or -- and somehow I find this more believable -- she's afraid of indictment for perjury because she has to go up Congress and testify under oath before the White House has decided what it's story is. And yeah, I'd feel like I was in jeopardy then too.
Me too.
Ms. Goodling, let me share something with you. Nobody wants your head on a platter. It isn't too late to turn yourself over to the other side and throw yourself on the mercy of the committee. The Bush WH will not protect you and no matter what you do, the Republican party is going to remember that you played a part in the downfall of their Cult of Personality. Consider it - like Jesus, we forgive.
Cycloptichorn