Excellent Post at TPM regarding Goodling's assertions for taking the 5th. She CAN'T do it for

[hang a left]

for her attorney's stated reasons.

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.

snip
www.talkingpointsmemo.com

[Supersedeas]

1. Finally, some legal analysis of a legal question...wonder if the Media will follow suit?

[Poiuyt]

24. This was debated on Hardball with a good report by David Schuster

[northzax]

2. interesting follow-up post:

Monica Goodling does have a good faith basis for pleading the Fifth Amendment - just not the ones in her lawyer's letter that are getting all the attention.

Under the federal False Statements statute, 18 USC 1001, it is a felony to cause another person to make a false statement to Congress. Since McNulty has allegedly told Senator Schumer that he made a false statement to Congress based on information provided to him by Monica Goodling, Goodling could very well be prosecuted for a Section 1001 violation.

All the rest of the crap in her lawyer's letter is intended to sooth as much as possible WH anger at her for invoking the Fifth.

also talkingpointsmemo.com

[H2O Man]

4. Key.

[Iwasthere]

5. Excellent!

Send this to spector... this might make him stammer a bit.

[DemReadingDU]

25. here is the permalink

edit to add another link

http://www.talkingpointsmemo.com/archives/013272.php


http://www.talkingpointsmemo.com/archives/013277.php

[suffragette]

3. When I clicked on the link, the following was at the top of the page

TPM Reader BK on Monica G.

Monica Goodling does have a good faith basis for pleading the Fifth Amendment - just not the ones in her lawyer's letter that are getting all the attention.

Under the federal False Statements statute, 18 USC 1001, it is a felony to cause another person to make a false statement to Congress. Since McNulty has allegedly told Senator Schumer that he made a false statement to Congress based on information provided to him by Monica Goodling, Goodling could very well be prosecuted for a Section 1001 violation.

All the rest of the crap in her lawyer's letter is intended to sooth as much as possible WH anger at her for invoking the Fifth.


Was the other piece moved down?

[hang a left]

6. I just went there and a new post was added to the top of the page

and the previous post was deleted. I don't know why.

[suffragette]

8. Thanks. I looked back at your OP and searched for the initials

of the poster, tb, and found it lower on the page.
It looks like there is a lively discussion of this going on at TPM.

This piece in particular looks very interesting indeed:
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.

[Hepburn]

7. I agree....

...it is an improper invocation of the 5th Amendment. It applies ONLY to statements which may tend to incriminate and NOT to perceptions that a panel may be hostile.

[northzax]

11. unless, of course

she knows all this (or her lawyer does, more likely) and has reason to believe that if she tells the truth to certain questions, she will be confessing to a criminal act. Given that, from what we have evidence of, the firings were not actually criminal, it means she knows something else.

that, or she is fishing for immunity and then will cop.

[Hepburn]

15. That is true on the issue IMO of whether criminal conduct took place...

...however, going SOLELY on the contents of his letter, IMO, he does not state sufficient grounds. The reason for this is that he went too far. All which was necessary is to state that she is taking the 5th on the grounds that her testimony may incriminate her. But to add the extraneous reasons which he alleges as to a hostile environment of the panel before which she was subpoenaed to appear, provides grounds which make the invocation of the 5th Amendment legally inappropriate. The 5th protects against self-incrimination and not against appearing and testifying before a tribunal one does not like.

I don't think she is fishing for immunity because of the basic demeanor of the language in the letter. Those who wish to have a grant of something should not call out the committee as did the language, IMO, used by her atty. I know that if I was seeking to invoke the 5th in order to seek immunity for a client, the last thing I would do is tell the tribunal before which my client was appearing that I thought they were on a witch hunt!

JMHO

[northzax]

19. see, you are thinking logically (the way a lawyer should)

there is something really strange about this whole thing. First off, when supoenaed by Congress for an internal matter (which, if they are to be believed, this is) why hire a securities lawyer? that's just odd behaviour for a lawyer.

second, you need to start thinking from the perspective of a BushBot. they don't think Congress has the right to oversee the executive branch on this matter, (or any other) therefore it is obviously a biased panel and no one should be forced to testify in front of a blatently unfair panel (well, no Republican at least.) If you think that you did nothing wrong, but that the panel you are testifying in front of will think everything you did is wrong, then you can make the arguement that anything you say is incriminating, simply because the panel will find it incriminating, no matter what.

stop thinking logically, and starting thinking like they think, and it's logical, from that perspective.

[hang a left]

22. I think that being wrong and being unlawful are two different things.

From what I have read this afternoon, I really don't think she is going to be able to hide behind the fifth unless...she actually coached McNulty to lie to congress. Then she is up the creek.

Just kills me how they think they can do whatever they want and make a mockery of the three equal branches.

[zbdent]

9. She's probably "taking the fifth" to avoid

being "suicided" ...

[dicknbush]

10. I did not have Illegal relations with that woman..........Monica

Come on Monica this is when all that Christian schooling pays off. Regent University has prepared you for this type of situation......Just ask.... WHAT WOULD JESUS DO? (HINT TELL THE TRUTH NO MATTER WHAT THE CONSEQUENCES FOR YOU OR YOUR CRONIES!!!!)

[Justice Is Comin]

12. It is true that her attorney is putting himself

in a pickle by writing those justification declarations of "witch hunt" and pre-drawn conclusions by Senator Schumer.

The fifth is the fifth and by it's very definition states it is an intent to avoid "self incrimination."

Dowd is a dud.

[Supersedeas]

13. Senator Specter would be in the same pickle.

[loudsue]

14. Why do you say that?

Did I miss something Specter said?

:kick::kick::kick:

[Hepburn]

16. IMO, Dowd's letter was NOT well thought out.

All which was necessary to do was a one-liner, basically, that on his advice, his client would be invoking the 5th Amendment. End of discussion. Unfortunately, by adding political comments, IMO, he may have given the committee grounds to deny her invocation. I am not sure on the process regarding this since I have never done this for a client before a governmental committee which is investigating possible criminal conduct. But, I can tell you, that if I had written that letter, it would have been short, sweet and to the point. Never give anyone something to shoot at when you do not need to do so. IMO, he screwed up and did so solely for political reasons while NOT thinking of the best interests of the client. Bad move.

Which leads me to another point: There have been comments that someone may be supplying her with this counsel. Just a gut reaction to the contents of this letter, but it does smack of that, IMO, because of his unnecessary comments which provide reasons for invoking. That just was NOT necessary.

JMHO

[hang a left]

17. It was rather combative

IANAL but my impression of the letter from Gooding's counsel reaked of WH talking points. From this I determined that the attorneys amongst themselves are coordinating with the WH and will be putting on a show for the cable outlets.

[Hepburn]

18. I agree.

It sure smelled to me like it was being done for reasons other than invoking the 5th for his client. Felt all wrong to me.

[Justice Is Comin]

20. The stupidity of it goes even farther than that.

As you said, this may be subject to a four corners argument that this reason to invoke the fifth as explained by her lawyer, is not protected under the fifth amendment.

But worse, for the moment, the committee is now forced to go around her and develop the suspicions she just raised as likelihood of perceived crime. They have many many credible sources besides her to get the same information and she has already been implicated by McNulty as preparing him with false testimony. He should have been quietly negotiating in the background for immunity against prosecution. He blew it now.

If they can independently develop strong enough evidence of her crime through the others without her testimony, she's screwed. Because they won't need to accept a proposal for even use immunity. They can just turn her over to the Justice Department and charge her with obstruction.

I wouldn't want Dowd representing me.

[hang a left]

21. Who else could provide them with information on who she

was talking to and coordinating within the WH?

Also I read a post today at FDL regarding a handout that McNulty offered to members of the committee that seemed to contradict what he was actually saying. Something about emails or letters. Over at the Lake they are trying to desperately get a hold of one of the packets.

It was real interesting. Go take a look if your curious.

[Justice Is Comin]

23. Exactly.

McNulty was so nervous realizing that he was subject to criminal charges that he initiated the contact to Senator Schumer after his testimony.

As to who else could provide them information on the White House connection, I think I would get a big bowl of popcorn for Thursday. You can bet there will be names of people divulged who are probably very nervous right now.

[northzax]

26. see, there you go being logical again!

you gotta stop this :)

Yes, this is combative, which isn't a good idea unless you want a fight you think you can win the White House wants this brawl with Congress. everytime anyone has stood up to them, that person has blinked. the White House thinkgs this will happen again...