Immunize Her
When I read today that Monica Goodling, senior counselor to Attorney General Gonzales, is going to invoke the Fifth Amendment and refuse to testify before Congress, my reaction was the same as Sandy Levinson's over at Balkinization: immunize her. Levinson writes:
I suspect the rationale behind Goodling's decision to plead the Fifth is twofold: First, her truthful testimony is likely damaging to her superiors in some way and she'd prefer not to contribute to their downfall. Second, she--like everyone else--is probably still not sure what the "official story" is and is worried that her testimony will be contradicted and repudiated by other officials once the Powers That Be determine what that official story is.
Suffice it to say, neither of these reasons provides a legitimate basis for invoking the Fifth Amendment. As Orin Kerr explains, the privilege against self-incrimination can be invoked only when you fear your truthful testimony will incriminate you. It cannot be invoked to protect others, and it cannot be invoked when your sole worry is that you might commit perjury.
Nevertheless, challenging Goodling's basis for invoking the privilege would be difficult and time-consuming. It would be far simpler just to immunize her and hear what she has to say. I suspect this is ultimately what her lawyers had in mind when they advised her to invoke the privilege. Goodling seems likely to testify one way or another, and they'd prefer she did so subject to a grant of immunity. So be it. There are bigger fish in the pond. Much bigger.
This seems the perfect opportunity for the Committee to award Ms. Goodling immunity from prosecution. Indeed, there seems to be no serious argument against such an immunity bath in her case, since there is almost no possibility that she could in fact be held liable for anything she did if her office was indeed simply to serve as a "liaison" to the White House from DOJ. If immunity was good enough for the first Monica, it should be good enough for the second.To the extent there is any criminal wrongdoing here, it is hard to image how Monica Goodling could possibly be anything more than a peripheral player in it. So grant her immunity and compel her testimony. It's a no brainer. The Fifth Amendment no longer applies after immunity has been conferred. And she'd still be on the hook for perjury charges should she decide to lie to Congress.
I suspect the rationale behind Goodling's decision to plead the Fifth is twofold: First, her truthful testimony is likely damaging to her superiors in some way and she'd prefer not to contribute to their downfall. Second, she--like everyone else--is probably still not sure what the "official story" is and is worried that her testimony will be contradicted and repudiated by other officials once the Powers That Be determine what that official story is.
Suffice it to say, neither of these reasons provides a legitimate basis for invoking the Fifth Amendment. As Orin Kerr explains, the privilege against self-incrimination can be invoked only when you fear your truthful testimony will incriminate you. It cannot be invoked to protect others, and it cannot be invoked when your sole worry is that you might commit perjury.
Nevertheless, challenging Goodling's basis for invoking the privilege would be difficult and time-consuming. It would be far simpler just to immunize her and hear what she has to say. I suspect this is ultimately what her lawyers had in mind when they advised her to invoke the privilege. Goodling seems likely to testify one way or another, and they'd prefer she did so subject to a grant of immunity. So be it. There are bigger fish in the pond. Much bigger.
posted by A.L. at 11:29 PM
6 Comments:
I haven't been able to track this down -- I thought it was on TPMuckraker but it wasn't -- but on a long comment thread I read yesterday, there seems to be some doubt as to whether Monica Goodling is, in fact, licensed to practice law in any state. The comentators were unable to find her name listed anywhere.
If this IS so, the lady may have problems unconnected with the USA scandal that would keep her from wanting to testify and would justify the use of the 5th. If she is immunized on that one, she might be willing to testify, but it still wouldn't be good for her career -- see the Deutsch incident.
Is it possible she's just stalling, on orders from the White House? If that's the case, then isn't it possible she still would refuse to testify, even with immunity?
I know that sounds ridiculous, but c'mon. This is the Bush Administration.
Is it possible she's just stalling, on orders from the White House? If that's the case, then isn't it possible she still would refuse to testify, even with immunity?
Once you've been given immunity, you can't refuse to testify. A grant of immunity nullifies your 5th Amendment privilege.
first time commenting here but your post was so great. seems the whole WH game plan is falling apart. WH counsel and DOJ senior attorneys decided to use a strategy of no comment on personnel decisions. Well, gonzo followed the plan when he testified, and lied about his role in firings. but then Deputy Attorney General Paul McNulty ignored the WH no comment game plan when he testified about specific reasons that the administration fired the attorneys and acknowledged the role of politics in the firings. so, now gonzo has changed his position, stating he did not pick the targets for firing but only participated in recommendations for firing people. what will be the next change in his story? If only this monica has some equivalent of a blue dress.:)
I cannot help but think someone feels she a bigger fish than others do. The immunity option is an obvious solution to acquiring her testimony unless there are dimensions we do not know. This is to easy....something is not on the up and up here.
Richard
Probabaly old news but JMM @ TPM had a recent post on Monica and her need for the 5th -
...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...
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