A couple TPM Readers chime in on DOJ White House liaison Monica Goodling’s plan to plead the 5th before the Senate Judiciary Committee …
First, TPM Reader TB …
A party can request a hearing (in federal or state court) to examine whether the party invoking the Fifth has done so properly. Goodling’s attorney’s letter does not provide a valid basis for invoking the Fifth. You can’t invoke the Fifth to avoid perjury charges (or obstructing justice with the selfsame testimony). (I have the cases here, if you want them.) You can’t invoke the Fifth because you think the Committee is on a witch hunt. Etc.
They shouldn’t let Goodling get away with this. She either is refusing to providing testimony because she may be testifying about some crime she has previously committed (which is a valid reason for taking the Fifth) or she isn’t. If she is, and a Judge so determines, then fine (and goodbye to her attorney’s ridiculous GOP talking points), and if she isn’t, she should be compelled to testify under subpoena.
The funny thing is she may be obstructing justice (protecting others) by refusing to testify under a bogus claim of needing to take the Fifth.
Talk to some attorneys who work with Congressional committees and see which court they can take this to — I would suspect the D.C. Circuit.
TPM Reader EJ makes the same point …
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. I’m far from an expert on this matter, but I wonder if the Fifth has been properly invoked at all here.
I’m obviously not a lawyer. But I think these good folks may be on to something. (TPM Reader TB identifies himself as a lawyer.) Certainly 
there’s no 5th amendment privilege against testifying before meanies. So the alleged partisanship of the committee doesn’t fly. And in any case, the committee doesn’t prosecute you for perjury. Unless I’m completely forgetting how this works, all they can do is make a referral to the Justice Department. (Maybe they can hand it to Gonzales next time he comes to testify.) And the most sensible defense against a perjury trap, I would have thought, would be to tell the truth. After all, to the best of my knowledge Goodling hasn’t testified on this subject before — so it’s not like they can trap her into contradicting previous sworn testimony.
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.
So again, look at what the Goodling letter claims. The argument throughout almost all of it is that the committee is too hostile to her for her to answer its questions. On this point, let me put this out to the lawyers in our audience, of whom there are quite a few. Take a look at the Goodling letter and let us know whether you think this holds up as grounds for asserting a 5th Amendment privilege against not testifying.
Now, one more point. Above I said ‘almost’ the whole argument. On page two of the letter, Goodling’s lawyer asserts as the fourth reason for her refusal to testify that “it has come to our attention that a senior Department of Justice official has privately told Senator Schumer that he (the official) was not entirely candid in his report to the Committee, and that the official allegedly claimed that others, including our client, did not inform him of certain pertinent facts.”
His name isn’t stated. But this appears to be a reference to Deputy Attorney General McNulty, the subject of this post from earlier this evening. Here we finally appear to have a bad act that Goodling believes or at least claims may expose her to criminal prosecution — lying to Congress by proxy by intentionally misinforming an official about to testify before Congress.
Just watching this from the outside, it looks as though that is the bad act she’s afraid to testify about or — and somehow I find this more believeable — she’s afraid of indictment for perjury because she has to go up to Congress and testify under oath before the White House has decided what its story is. And yeah, I’d feel like I was in jeopardy then too.
