(Love this shot. Too funny. Via Saffanna.)
Monica Goodling's lawyer sent a response letter to John Conyers and the House Judiciary Committee yesterday, restating his client's intention to assert her Fifth Amendment privilege to stay altogether silent. The great folks at TPM Muckraker have uploaded the document for you to view, and I'd like folks — especially those who practice in the DC Bar — to take a peek at page 3 for me, wherein the attorney says that calling Ms. Goodling would be in violation of the D.C. Legal Ethics Opinion No. 31 (March 29, 1971).
Out of curiosity, I went to the DC Bar website to take a gander at this Legal Ethics Opinion No. 31, and found this:
Opinions with numbers lower than 210 were issued interpreting the Code of Professional Responsibility. Some of those opinions remain in effect under the Rules of Professional Conduct and are available below.
Earlier opinions listed below may be obtained from the D.C. Bar’s Legal Ethics Office….
By my reading, the opinions that "remain in effect" are the ones which are available via a link on the site — thereby, those which are not available via a direct link and have to be obtained by special request from the Bar are, arguably, no longer remaining in full force and effect. (Is that how you guys read this? Because it seems pretty straightforward to me.) I've e-mailed the DC Bar Association to get an answer as to whether this is a valid Legal Ethics Opinion any longer — because Opinion No. 31 is NOT available as one of the designated "[s]ome of these opinions remain in effect" because it is decidedly not "available below." But until I receive a response from the DC Bar Association to my query, I thought I would ask if any of our DC Bar readers might know the answer to this.
If it is no longer in full force and effect, it is not precedential. It may be persuasive, as a remnant of the Watergate era — and it certainly serves as a reference note for the media PR machine to hit, just as the assertion of former Senator Joe McCarthy's name carries a certain cachet in this letter's context, but it would not carry the weight of a valid precedent if it has been invalidated or superceded. (If Dan Eggen of the WaPo is any indication, there is some precedent for inflammatory PR bait taking in the media already on the McCarthy note.)
But a public media campaign and actual legal applicability are not one and the same, and a lawyer who is having to fight for his client on a PR front as well as placing legal precedent in perspective often fights themselves as much as their legal adversary. And I am wondering whether this may not have been an inadvertent overreach, bluster, or simply a ballsy attempt at a high stakes bluff — whether Goodling's attorney is gambling the Democrats will not have the nerve to call his bluff outright with a subpoena and a contempt citation for his client if he persists in a broad blanket claim on her behalf.
In doing a bit of additional research on the assertion of the 5th Amendment privilege, I found this summary on FindLaw particularly illuminating in its emphasis:
The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded, 199 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace. 200 (emphasis mine)
Findlaw's annotation cites two cases: Brown v. Walker and Ullman v. United States, in support of this. It certainly is Ms. Goodling's legal right to validly assert her 5th Amendment privilege — and she should be allowed to assert it if she, indeed, has valid grounds to do so. But it is not, by any means, a blanket right of assertion without some particularity and justification therefor. And yet, the letter from her counsel appears to do just that. Is it a bluff that he is gambling neither the House nor Senate will call? Or a public bit of posturing in order to obtain a better behind-the-scenes negotiating stance on behalf of his client for use and/or other limited immunity? (And truly, what would you expect from a protege of Barbara Comstock except a public relations strategy? Because, golly, look how well that plan worked out for Scooter…)
This and many, many more questions are raised…but not yet answered. Which just keeps this whole mess in the limelight another few days. Not an enviable position for Ms. Goodling or her counsel, and certainly not the best outcome at the moment for the DOJ, the AG preparing for his day in the witness chair or for the White House. Which makes me ask myself exactly what Ms. Goodling's counsel is trying to achieve with all of this — unless, of course, this simply is a case of protecting his client's interests and nothing else. But with this White House and this particular crowd, you just never know, do you? And, frankly, that is a big part of the problem — who could possibly trust these people to be honest with us…or with themselves?
More from the WaPo; TPM Muckraker; the ABA (regarding potential exposure to civil liability by taking the 5th in a criminal context in some cases, very intriguing analysis); Time magazine; and NPR. And in the karma category, this is a hoot.