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The Right To Remain Silent…Or Not

(Photo via Morgan Tepsic.)

Guess which story just sprouted a hundred new legs, all of them connected to media types within the Beltway that sat up and discovered it with one giant whiff of the Fifth Amendment yesterday:

The senior counselor to Attorney General Alberto R. Gonzales will refuse to testify before the Senate Judiciary Committee in the unfolding U.S. attorneys scandal, invoking her Fifth Amendment right against self-incrimination, her attorneys said today.

Monica M. Goodling — who is on an indefinite leave of absence from Gonzales's office — also said that at least one senior Justice Department official blames her for failing to fully brief him prior to a Senate appearance, leading to "less than candid" testimony.

That game of pass the political buck just isn't fun any longer, is it Mr. McNulty? Especially when flinging all that poo in the air ultimately meant that you wound up with a lap full.  Especially when your boss, the United States Attorney General is floating the "pure heart empty head" defense.  (Which, as any prosecutor worth anything can tell you, is useless — ignorance of the law is no excuse.  H/T to Michael Froomkin for catching this bit of idiocy.  One wonders how the GOP whisper set could possibly be floating rumors that Gonzales is incompetent, doesn't one?)  And according to ABCNews this morning, it looks like Mr. McNulty may be the designated fall guy of the moment:

The official, Deputy Attorney General Paul McNulty, ignored White House Counsel Harriet Miers and senior lawyers in the Justice Department when he told the committee last month of specific reasons why the administration fired seven U.S. attorneys — and appeared to acknowledge for the first time that politics was behind one dismissal. McNulty's testimony directly conflicted with the approach Miers advised, according to an unreleased internal White House e-mail described to ABC News. According to that e-mail, sources said, Miers said the administration should take the firm position that it would not comment on personnel issues.

Until McNulty's testimony, administration officials had consistently refused to publicly say why specific attorneys were dismissed and insisted that the White House had complete authority to replace them. That was Attorney General Alberto Gonzales' approach when he testified before the committee in January.

But McNulty, who worked on Capitol Hill 12 years, believed he had little choice but to more fully discuss the circumstances of the attorneys' firings, according to a a senior Justice Department official familiar the circumstances. McNulty believed the senators would demand additional information, and he was confident he could draw on a long relationship with New York Sen. Chuck Schumer, a Democrat, in explaining in more detail, sources told ABC News.

In doing so, however, McNulty went well beyond the scope of what the White House cleared him to say when it approved his written testimony the week before the hearing, according to administration sources closely involved in the matter.

As a reader wrote to me this morning, "They're going after McNulty, tossing him to wolves. Selective leak of WH e-mail could be construed as waiver. If McNulty has any brains he'll demand release of all of them to show complete picture." Absolutely right. And I'd bet that McNulty has copies of quite a few of those stashed away for just such an occasion — because you don't work in a nest of vipers without keeping a little "antivenom" on hand, just in case. (Or, if you don't plan ahead, you are an idiot.)

Huge kudos go out to Sen. Pat Leahy, who had this to say after learning that Goodling would take the 5th before his Senate Judiciary Committee:

It is disappointing that Ms. Goodling has decided to withhold her important testimony from the Committee as it pursues its investigation into this matter, but everybody has the constitutional right not to incriminate themselves with regard to criminal conduct.

The American people are left to wonder what conduct is at the base of Ms. Goodling’s concern that she may incriminate herself in connection with criminal charges if she appears before the Committee under oath.

Sen. Leahy, you see, also used to be a prosecutor back in the day.

And Sen. Leahy is more than familiar with the 5th Amendment as a result, and knows that it cannot be invoked unless or until the person invoking it feels that they will be incriminating themselves with regard to specific criminal conduct, not just some vague possibility for the White House laying its own perjury trap for underlings to keep Rove and Gonzales safe — unfortunately for Goodling, having snakes as colleagues and being worried that they will stab you in the back in a heartbeat to save themselves is NOT a valid reason to take the Fifth.  The text of the Fifth Amendment in its entirety:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  (emphasis mine)

No fear of criminal implication against oneself, no 5th Amendment. Which means that Ms. Goodling can only invoke this if she fears that she has done something which is prosecutable under the law.  No taking the 5th because you might embarrass yourself, your boss, or your political cronies — there has to be a connection to some criminal matter in order for it to be properly invoked.  And no invoking it as a means to avoid testimony that might be difficult because you might have to rat out folks higher up on the crony chain — the law does not make exceptions for the powerful, nor does it make exceptions for the vindictive and nasty.  Truth is truth.  Period. 

And no taking the 5th just because the mean old Senators and Congresspeople want to do their sworn Constitutional duty and provide oversight in the possibility that you and your peeps at the DoJ, and all the various and sundry minions in Rove's political shop decided that you could run the United States government as your own personal electioneering machine, regardless of the laws of this nation.  Even Boss Tweed had to pay the piper for his corruption and graft in the end, and just because you work for the President's bestest buddy does not mean that you don't have to follow the law, too.  (Hint:  You work at the DoJ.  Try hanging out in the law library and actually reading the books there.  Start with a text on the Constitution — you clearly need a refresher.)

What does this say to me? It says that Ms. Goodling's attorney, one John Dowd, will begin negotiations with the Senate Judiciary Committee regarding the potential for Ms. Goodling to put up under cover of immunity.  (Note to Mr. Dowd:  if your letter to the committee chair was as snotty as it is rumored to have been, it's a nice public act to put on for the GOP cronies of your client while you negotiate behind the scenes, but you might want to back that down a notch because Pat Leahy is not the sort to put up with a lot of posturing crap for very long.  Just FYI.)  It also says to me that Ms. Goodling either has a nice cash stash, that someone else is footing her legal bills, or that Mr. Dowd is an old family friend, because a man with this background does not come cheaply to the negotiation table:

Mr. Dowd has prosecuted and defended significant criminal matters at trial and in parallel proceedings before Congress and regulatory agencies for more than 30 years. His practice focuses on the trial of complex civil and criminal cases.

Mr. Dowd is noted for his representation of a U.S. district judge, a former U.S. attorney and two U.S. senators. In addition, he represented a U.S. governor in a lengthy, high-profile criminal trial involving 23 counts charging false statements, wire fraud and attempted extortion.

Mr. Dowd has represented a U.S. senator before the Department of Justice and the Senate Ethics Committee; a U.S. Army colonel in the Iran Contra Hearings; a U.S. senator before the Senate Ethics Committee; and a U.S. governor in litigation with the Resolution Trust Corporation and in a fact-finding hearing before the House Subcommittee on General Oversight and Investigations, Committee on Banking, Finance and Urban Affairs, which inquired into the failure of the savings and loan industry. He has served as an arbitrator for the International Court of Arbitration of the International Chamber of Commerce in Paris.

You tell me — do you hire an attorney with this level of legal experience for no reason, because you just randomly picked a name out of Martindale-Hubbell?  I didn't think so.   You hire this sort of attorney because you need all of what he knows and what he has done.  Because a man with this level of expertise knows a lot about the law, and about how Washington works, and there is definitely some strategic dance in the works that will become more and more apparent as we watch it unfold.  The lawyers in the audience can back me up on this:  this sort of experience does not come cheaply, and it is often hired for very specific reasons — and, in Ms. Goodling's case, I can think of an awful lot of potential reasons.  How about you guys?

But wait, there is more.  Readers at TPM have reviewed the letter and come to the same conclusion that I have (H/T to Phoenix Woman for the link on this).  Josh is absolutely correct that the best defense against a perjury indictment is to simply be honest, and I agree with him that Goodling's problem has more to do with the fact that the White House hasn't yet decided where the line for honesty lies on this one.  From Josh:

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.

And that seems to me to be the crux of the problem for Ms. Goodling: the cover story hasn't been settled on this one, and in a fluid situation where telling the truth can get you in trouble with the vindictive pit of vipers that work in "Rove's shop," she'd rather not have to be honest, thank you very much. Except that isn't what the law provides, and I'm certain that her lawyer is more than aware of that — and that folks on the Judiciary Committees in both houses of Congress are more than aware of this as well. So, why the public feint? Again, I think it's a maneuver to buy some time for behind-the-scenes negotiations. But I'm going to do some more digging on this.

While we are at it:  huge kudos to Rep. Henry Waxman who sent out a lovely note to the White House document folks reminding them of their legal responsibility to maintain and archive ALL e-mails, even those using an non-WH addy, and that Waxman would like to have a chat about just how many of those are being used.  You know, while we're thinking about it.  More from Justin Rood at ABC's The Blotter.  And from emptywheel.

Ahhhh, I love the smell of oversight in the morning. 

(Huge H/T to *xyz and to dzman49 for the heads up on some of this last evening.  Much appreciated!)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com