I appreciate and respect that witnesses are entitled to take advantage of their [tag]5th Amendment[/tag] rights. It’s a bedrock legal principle and it’s wrong to jump to conclusions when it happens.
But given the circumstances, and using a little common sense, this looks awfully bad for the Bush gang.
Attorney General Alberto R. Gonzales’s senior counselor yesterday refused to testify in the Senate about her involvement in the firings of eight U.S. attorneys, invoking her Fifth Amendment right against self-incrimination.
Monica M. Goodling, who has taken an indefinite leave of absence, said in a sworn affidavit to the Senate Judiciary Committee that she will “decline to answer any and all questions” about the firings because she faces “a perilous environment in which to testify.” […]
Goodling’s refusal to testify illustrates the rising political and legal stakes surrounding the removal of the federal prosecutors, and underscores the fissures developing among Gonzales and his current and former senior aides as the attorney general struggles to keep his job.
The decision means a senior aide to the nation’s top law enforcement official is in the remarkable position of refusing to testify for fear of implicating herself in a crime. (emphasis added)
That sound you hear are the stakes of the scandal being raised. As right-wing CNN contributor Terry Jeffrey said yesterday, “It is inexcusable for people in the Justice Department to take the 5th amendment to avoid testifying in Congress. People there must go testify. There’s no question about it.”
And why is Goodling, the Justice Department’s White House liaison, pleading the 5th? According to a letter from her attorney, Goodling believes mean ol’ Democrats aren’t open-minded enough about what happened, and already suspect the worst, so she doesn’t want to talk to them.
Is that a legitimate option for refusing to testify? It doesn’t look like it.
A TPM reader explained:
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.
That’s a good summary. Goodling’s argument seems to be that she’s willing and able to tell the truth, and she’s done nothing wrong, but her testimony may be misused in some way. As Josh put it, “[T]here’s no 5th amendment privilege against testifying before meanies.”
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.
And who, by the way, is [tag]Monica Goodling[/tag]?
Goodling, 33, is a 1995 graduate Messiah College in Grantham, Pa., an institution that describes itself as “committed to embracing an evangelical spirit.”
She received her law degree at Regent University in Virginia Beach, Va. Regent, founded by Christian broadcaster Pat Robertson, says its mission is “to produce Christian leaders who will make a difference, who will change the world.”
E-mails show that Goodling was involved in planning the dismissals and in later efforts to limit the negative reaction. As the Justice Department’s liaison to the White House, she could shed light on the extent of White House involvement in the dismissals.
Yesterday’s letter notwithstanding, she still might. Be on the lookout for a possible immunity deal, in which Goodling gives testimony that implicates others in exchange for immunity from possible prosecution.