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March 27, 2007

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Anyone know if her lawyer is the same John Dowd who got Pete Rose banned from baseball?

That's the one, Saltin.

i seem to recall reading that, while congress has historically relied on the doj to pursue their legal needs,

they also have the option to use their sergeant-at-arms.

it's occurred to me recently that there is the possibility of an actual, physical confrontation between the congress and the president arising out of this particular situation - the administration's doj is the target of congressional oversight requests, e.g., for subpoenas, contempt citations.

would the congress send over their "troops" to the doj to deliver a summons or arrest for contempt?

would the president physically rebuff the congressional personnel?

with george bush unsuited by virtue of his personal traits to function as president, e.g., by compromise and tact to quell the flames before they consume,

we could end up with an unprecedented confrontation between the two branches of government.

Drat, I read somewhere that Kyle Sampson was also still employed within DOJ, but it was with the environmental branch. The post went in to him moving into his new digs and then carrying on. Sorry for my feeble memory.

I read the same thing, mainsail, so you're not crazy. Not for that reason, anyway. But I think the deal fell apart when it was exposed to sunlight.

And Congress does indeed have the option of enforcing contempt on its own authority, orion. It hasn't been used for decades, but the "inherent contempt" process contemplates exactly that. Would the president physically rebuff Congressional personnel? It's a question the press may have to start asking, because the Members of Congressional oversight committees are starting to take a second look at this procedure.

The case law Dowd cites in the letter Safavian, North, Poindexter and Libby. Nice company for Monica to be in.

Yup, Kagro--every move coming from BushCo seems to be forcing us back to the Teapot Dome scandal.

Btw--I doubt you saw it when you were there, but the display case in the first floor of Prettyman had some of the original docs from Teapot Dome. Egregious, an FDL reader, thought it was some kind of portent.

thanks (I think) kX, your comment on the 'inherent contempt' yesterday got me to Googling out of curiosity. It does look useable just a wee bit dusty from neglect.

If Monica (it just had to be a Monica, eh?)
is trying to play ball with the WH she might do well to take a look at WH history of protecting the peripherals before she commits her backside.

Aside, I'm looking out front window this morning. All 3 of my dogs are fanned out facing 3 different directions barking. LOL they remind me of the WH/DoJ cabal's attempts at squashing the USA story.

So, AG had a senior counselor whose pedigree is Messiah College & Falwell's Regent Law School.

Obviously, she's got God on her side.

Here's my take on Ms. Goodling's strategy. She knows that there is a pretty good case that she was involved in a conspiracy to (among other possibly illegal acts) stop Carol Lam's investigation into Republican corruption. She knows that the architect of that conspiracy (I won't mention his name but you can email him at kr@georgewbush.com) will be protected at all costs (hence the invocation of I. Lewis "Scooter" Libby). All the rest of her lawyer's email is smoke and mirrors.

I am not a lawyer (and I didn't stay at any cheap hotel last night either), but I did take a couple of grad school course cross-listed with the law school (one from Barbara Jordan and the other from Dagmar Hamilton, look her up sometime, she's an interesting person) that covered some of the pertinent issues in current circumstance. I think it is vitally important for the Congress to start moving directly to impeachment proceedings against Alberto Gonzales. They will get far more cooperation from the Courts if they are on firm constitutional grounds.

Could that be the way this thing ends?

1. Congress subpeonas Goodling but DOJ refuses to serve it.
2. Congress sends it's Sargeant at arms to serve the subpeona, but Bushie orders the physical blocking of Sargeant at arms.
3. Bushie is Impeached, convicted and removed from office.

When I heard about Goodling pleading the Fifth yesterday, I immediately assumed she was angling for an immunity deal.

After FDL commenter Cocoabeach pointed out that Goodling's attorney used the word "firings" and not the word "resignations" in the letter to the judiciary committee, I think she's got the goods on the DOJ and White House both and is using them to force the issue.

Transactional immunity?

What explains the failure of the mainstream media to cover the purge scandal for so long, and so many other scandals? Do you think somebody just set up newspaper editors to cheat on their wives, and threatened to tell if the editors wouldn’t play ball when they come back some day and ask for something?

It wouldn’t be that hard to do, when you think about it. People wouldn’t talk about it.

Rayne

I agree that the use of the word "firings" is pretty damning--the best piece of evidence this is a bid for immunity. But you'd think they'd be a little nicer with Leahy, if they're going to ask him for immunity.

I guess we wait and see if she loses her job.

Is keeping Goodling on the payroll an outside attempt at trying to claim executive privilege, rather in keeping with your premise that they are trying to push the envelope on the Fifth Amendment? They'd be pushing executive privilege, too.

Ditto for Sampson, since we don't have any solid idea what his current employment status may be.

As for the tone of the letter - I think this is schwing for the base, as is the bulk of the logic employed. What happens if Leahy swats at it, after all?

WEll, here's the question. If Leahy gives her immunity, does she have to take it?

And why pose for the base? Goodling isn't about to become Ollie NOrth, in any case. If anything all it does is align Goodling with a bunch of people who WERE covering up a crime.

Heh. Excellent question. Accepting immunity implies admission, doesn't it? On the horns of a dilemma...

I think a good portion of the base is permanently deluded, they'll never see what happened as wrong or illegal. That promotion piece written by James Tobin's attorneys suggests they expect lots of investigations; is Dowd angling for a piece of the action by demonstrating his schwing? Is the attitude really just marketing designed to appeal to a few future prospects?

Though you could argue that, given the way they've pitched this, they're just trying toget her immunity without an admission of guilt, which may well be the case.

Though again, why insult the committee at the same time? I guess the thing that rankles me the most is the invocation of Libby--as if his conviction was improper. They're coming awfully close to making an anti-judiciary argument here. Which I find striking, from any lawyer.

And while anyone would opt to do so, if they had the cash . . . you don't really need such big time lawyers if you're just going to negotiate immunity and then, for the rest of your life, be absolved of sin.

FWIW, Ari Fleischer lawyered up with Williams & Connolly, another mega-firm (and apparently outside his income bracket -- he refused to tell reporters who was representing him because he didn't want to be billed for their answering reporters' calls).

I was thinking of that Swopa, but there's a difference. Ari wasn't wary of a perjury indictment, he was fighting an IIPA indictment (or so he thought). Now perhaps Goodling has determined she is guilty of obstruction (I'd buy that) in the Cunningham/Lewis probe, which might justify the lawyer. But for now, all we're talking about is the discrepancy between her work and McNulty's testimony.

Hold it. She's still on the government payroll. She can't take "free" legal representation if she's still employed at the DOJ, can she? Inside the Beltway, that falls under "gift" rules, doesn't it? (Outside the Beltway, it would simply be called a "bribe", of course.)

The case law Dowd cites in the letter Safavian, North, Poindexter and Libby. Nice company for Monica to be in.

How long until they start devoting classes and sections of textbooks to the criminal cases of Republican White Houses?

She can't take "free" legal representation if she's still employed at the DOJ, can she?

It's close to the end of Dubya's term, though, and if the firm can wait until 2009 to be paid, I'm sure the bill will be "taken care of" somehow. (IIRC, Clinton said before the end of his term that he would raise money to pay his staffers' legal bills.)

She can't take "free" legal representation if she's still employed at the DOJ, can she?

It's close to the end of Dubya's term, though, and if the firm can wait until 2009 to be paid, I'm sure the bill will be "taken care of" somehow. (IIRC, Clinton said before the end of his term that he would raise money to pay his staffers' legal bills.)
----------------------
"Monica, Katherine Harris is holding for you on line one."

Ah, I think the folks at TPM have it figured out: It's illegal to cause someone else to give a false statement to Congress. If McNulty is already saying Goodling gave him false information, she's in serious danger of being charged. Unfortunatley for her, there were quite a few people at the key meeting...

I think this is the most intense period in American politics since McCarthy or Watergate. The stakes and potential for direct constitutional conflict are emmense, yet the public hasn't a clue that the very fabric of freedon here in the US is on the line. Who blinks first, what if noone binks? WOW!

"But for now, all we're talking about is the discrepancy between her work and McNulty's testimony."

What's the chances we've missed something else here besides this? Or that there's something worse going on that hasn't yet been discussed?

Remember there have been several nudges about judicial appointments, too...

And has anyone looked to see if Goodling has a gwb43.com email addy? [runs off to look...]

I'm just happy that the statute of limitations on obstruction is longer than the amount of time Bush still has in office.

Regent (which claims on its website to have 150 lawyers in the Bush administration, a truly scary fact if true) is part of Pat Robertson's domain, not Jerry Falwell's. It's the diet shake and the diamond mines, not the hellfires of Lynchburg.

This is far, far from over. I don't see Pat Leahy or John Conyers letting this one go -- and awesome Henry Waxman is guarding the store re emails in private servers.

But really -- Goodling is definitely in a firewall position -- as liaison between Gonzales and the WH -- and putting her in a position not to testify would appear to me to be a very reassuring move to Karl's shop and the WH. They can't afford to be worried about appearances at this point -- the reality of the underlying crime, as Josh pointed out over at TPM, is the ultimate reality here.

I don't believe that Goodling can refuse a grant of immunity if it adequately removes her risk of criminal prosecution. She could then be compelled to testify. Getting there involves an elaborate dance, in which each side flirts with the other about what they know, about what crimes their immunity would protect them, etc. Dowd will want blanket immunity, Congress limted transactional immunity; hence, the dance and ultimately horse trading.

I think Dowd is playing the same multi-level game as Rove. If Goodling has the goods on top people, that's one more chit that makes Dowd an inside player, for the same reason J. Edgar Hoover kept elaborate files. Professionally, he needs to keep his client out of the way if she's innocent, and off the hook if she committed crimes. He needs to protect her from reprisals if she talks at all. For Karl and Dubya, that would be recommitting the original sin, an act they would take great pride in punishing with biblical excess, lest anyone else consider such infamy.

But you're right, Dowd and Akin Gump are the top of the heap. They have far more reach and power than Sampson's firm. This is too convoluted and expensive a game for them to do it for free. Goodling almost certainly could not afford them, probably not even the work they did this week. Nor would she have direct access to them without a sponsor. Which means they must implicitly consider that sponsor's interests. (Implicitly, because ethics rules would bar putting any interest above their client's; they would rationalize them as not being in conflict.)

The Libby reference may be code for the risks the WH could incur if they threaten a small-fry like Goodling. Like her having a compromising photo of the King of Bohemia, so he can't make her disappear without paying a consequence. It might telegraph to Congress that she knows some good stuff, suggesting immunity would be worth the price. The disparaging remarks about Congress being engaged in an illegitimate, partisan fishing expedition - apart from the irony when seen from the perspective of the fired US Attorneys - is good theater; it bolsters Goodling's argument that her fear of implicating even her innocent self is reasonable.

In the end, this keeps the crowd's eyes off the ball, which is still on the WH's side of the net.

The explanation at TPM that Goodling faces charges under 18 USC 1001 for lying by proxy, by giving someone else (McNulty in this case) false information thus causing him to testify falsely to Congress, makes sense. The rest they theorize was just to placate the WH.

Laura Rozen also notes that Schumer has some history with McNulty, who was a Judiciary Committee staffer. We know McNulty told Schumer he had testified based on what he had been told, and that some of it was not accurate. So this makes sense.

I do like the idea that they are trying to stretch the meaning of the 5th, though. At least their hired lawyers can walk and chew gum at the same time even if the Admin appointees can't.

EW: "... it just strikes me that Goodling is really the key player in the negotiations between WH and DOJ on these firings. [...] So her unique invocation of the Fifth may actually be a strategy to shut this thing down. Or, at the very least, to ratchet up the stakes."

Maybe it was too obvious to state, but I think at least part of it -- if not an immunity ploy -- is to delay the investigation as long and as much as possible.

Bush is out in 2009. If Goodling, in her role as WH liason for DOJ, is the lynchpin here (and I think it's probably a troika of Sampson, Goodling, and Jennings) then pushing her 5th Amendment claim to resist questioning through the courts, up to SCOTUS, could seriously muck things up, at least for a little while.

But I don't see how she gets around testifying if granted immunity. She can refuse a pardon, yes. But I don't think immunity for testimony can be turned down.

.

JGarbiel

No, that's a good point--delay delay delay, at least until they whisk all the Abramoff scum through DOJ.

I'm coming aroud to the immunity position--though something about this still strikes me as a different move, perhaps immunity, but there's a catch...

mbbsdphil: "Dowd and Akin Gump are the top of the heap. They have far more reach and power than Sampson's firm. This is too convoluted and expensive a game for them to do it for free. Goodling almost certainly could not afford them, probably not even the work they did this week. Nor would she have direct access to them without a sponsor."

So who is it? Comstock? Parsky? Someone else?

Anyone have any ideas or educated speculation?

.

The House Sergeant At Arms is also on the board of the Capitol Police, so he has his own police force. In Hollywood's interpretation (Wesley Snipes investigating murder in the White House), the Secret Service has no jurisdiction over anyone except the President himself. So, barring the service of a duly authorized subpoena on White House staff would in itself be a crime. Btw, there's a House Sergeant At Arms and a Senate Sergeant At Arm. Get this, the Senate Sergeant is authorized to arrest the President himself (cuz the Senate convicts on impeachment by the House).

EW: "No, that's a good point--delay delay delay [...] I'm coming aroud to the immunity position--though something about this still strikes me as a different move, perhaps immunity, but there's a catch..."

Thanks, I agree. She's definitely way overlawyered for just an immunity deal, and her excuse for invoking the fifth is way too coy. Something's fishy, but ultimately, immunity has to come into play. My guess is they're looking for something special in the immunity deal, something outside the norm, extreme even for this type of situation.

I would guess that either means they have testimony they *know* will lead to impeachment proceedings, and they're trying to keep her as protected as possible from repercussions OR they really are trying to keep her from testifying under any situation.

JGabriel 16:18 -- hmm...Parsky wouldn't have entered my mind. Why Parsky? I'm all ears since Parsky is involved in selection process for USA's and judges in CA.

Comstock makes some sense, having been the director of public affairs for DOJ through part of 2003; current director Scolinos may have had her imprimatur, as well as other DOJ-OPA staffers.

Agreed, though, that some "kid" who joined DOJ in the last handful years while only in their 20's isn't going to stroll into Akin Gump and pull Dowd. Hell no.

"Nor would she have direct access to them without a sponsor."

So who is it? Comstock? Parsky? Someone else?
Anyone have any ideas or educated speculation?


How's this for a guess?

Oh Swopa, you hot dog, you. Think you've clinched it. I suppose Rove's hand was up the sponsor's backside, too.

On second thought, Swopa's guess lends more weight to Marcy's "pushing the envelope" theory. If Goodling was holding out for immunity but sponsored by the Janus-like White House and RNC, the immunity isn't ultimately for her.

Um, I find that pretty persuasive, Swopa. Now that you put it that way.

This is an interesting thread, the discussion of Goodling's motives and the legal issues involved. I frankly think the discussion is a bit lofty, though, for the Bush mentality of the DOJ or the rest of the Administration.

I think they are so arrogant, so full of their Unitary this and that theory, so paranoid about Congress [and the C.I.A.] that the deepest thought from them is "No. I don't want to." They start with "No" and fit everything else around it. My read is Monica is in way over her head. Her emails are naive and sophmoric. I think she's scared and doesn't want to talk. I think they're afraid to let her talk. I expect they found some high powered lawyer and said "she can't talk to Congress" and he wrapped up a story designed to keep her out of the spotlight.

I don't think the run of the mill Bushie is as smart as the commentors in this thread. I think they're just obstructionists figuring out ways to obstruct. I like EW's, "No, that's a good point -- delay delay delay." Just niggle and frustrate Congress until they wear out or we're out of office. I suggest the best strategy would be to send her directly to jail. If they fight in court, fine. But negotiating with them is just falling for their bait. When has it ever worked? Win or lose in court.

Or just give her immunity for all things for life [Then put her in jail when she still won't talk - the "Fitzgerald Method"].

Am I the only one who thinks that maybe the next 2 or 3 admin. should stay away from people named Monica? Seems obvious to me. Or at least ask them to change their names?!

Evidently the story that McNulty told Schumer he testified falsely based on what Goodling told him was confirmed by David Schuster, per Atrios. So she is in line for false statements by proxy.

But who fed her the false information? Who laid out the strategy? That's why she can't testify, not her personal jeopardy, for which she could be given immunity.

The Mehlman connection is really interesting. Pro bono representation would qulaify as a gift, one would think; even reduced rates would.

I don't buy immunity for one minute. I sure as hell wouldn't pay for a layer to rep someone who could testify against me if there was one gram of a chance that they would set up an immunity deal. Make no mistake her lawyers are not working for her. This is all about delay and keeping her from testimony.

Now, one more possibility. What if she doesn't know shit. Evil Rove might think, "Hey lawyer her up, make a big show, delay, then let her testify to embarass congress." Could we have a red herring here? Just a thought.

Please be careful about claiming that invoking the Fifth Amendment necessarily means that one has something to hide. It was Senator McCarthy (and the notorious HUAC) who used Fifth Amendment pleas by witnesses to badger them and accuse them of being Communists or pinkos.

While it is entirely likely that Ms. Goodling is in the WH plots up to her ears, invocation of the Fifth is not in and of itself an admission of guilt. Let's not abuse the Constitution to get at the abusers. There must be several other ways to get information. After all, Congress can grant immunity to her even if she doesn't want it, thus compelling her to testify. If, on the other hand, they wish to pursue a criminal investigation, she cannot be compelled to testify against herself.

Please do not flame me for this; I am not a concern troll. I have written on the maladministration's Constitutional misbehavior in diaries at kos and in comments here and at other sites. But I'm concerned to hear even Christie at FDL saying that she must have something to hide if she wants to invoke the Fifth. On other evidence, I'm sure she has plenty to hide, but we should not chip away at Fifth Amendment rights, even for those who would not wish to grant us the same rights.

False testimony by proxy? Assuming hearsay isn't as strictly limiting in congressional hearings, it still doesn't sound all that plausible that false statements based upon indirect knowledge by advice is going to be seriously pursued. Lying about something you know is one thing, giving false information based upon bum advice is another.

Avoiding self incrimination by forecasting own perjury is truly novel.

Good News maybe -- NPR reported out the first poll of public opinion regarding whether Congress should fully investigate the USA firings on All Things Considered tonight. 72% say Yes -- Congress should proceed. That is darn high given that this whole story only started being reported by the MSM over the last two weeks. If Bush's base on this is only 28%, that is significant.

There is another way to proceed, assuming that Gonzales can be forced out quickly. It is informal, but it was used during Watergate. The Senate can demand, as part of confirming a new AG, a commission for an Independent Prosecutor, and hopefully they remember enough Watergate Lore to remember to get it in Writing. In the case of Elliot Richardson, it was verbal only, which was the weak spot at the time of the Saturday Night Massacre, when he resigned rather than fire Cox. But subsequently, with the Next AG after the Massacre, Senate Judiciary got the commission spelled out in writing as the basis for Jaworski's authorities.

At some level a distinction needs to be made between Congressional Investigative work, and the actual investigation of crimes through normal process -- a prosecutor, a Grand Jury, and a trial judge who receives indictments and moves cases toward trial. The two can play off each other, but ultimately Congress has a different purpose from the Courts -- Congress's interests are in the effective operation of DOJ and not precisely in guilt or innocence of individual officials.

All this is why I think pressure has to be put on House Members to begin writing resolutions of impeachment against Gonzales and putting them in the Hopper, which is what will move Conyers to prepare (staff up) for an impeachment investigation in his committee. A formal impeachment investigation removes many witness protections not possible in an oversight hearing -- Executive Privilege is off the table, and I would imagine Fifth Amendment claims would be less powerful. But it is otherwise a narrow investigation -- it is focused on Gonzales's role and actions. And Impeachment is always a political move -- it is about formally saying so and so is not qualified or fit to hold high office. Gonzales has virtually no friends in Congress -- he has no political constitutency other than Bush, and thus I suspect done right, he could not only be impeached, but convicted. And if he looks down the tunnel, he might well decide to resign and focus on defending himself in court. Which would mean -- an AG vacancy, and Leahy could then write a commission for a Special Prosecutor as part of a package in confirming a new AG.

You know that 28% that want Congress to fully investigate is dead on where public opinion vis a vis Nixon was at the beginning of the public debate in the Rodino Judiciary Committee impeachment process. Hearings that establish facts can only inform and strengthen this measure of public opinion -- something absolutely necessary if a process is to go forward. (This is not at all like Clinton's impeachment, where Clinton never went below 50%). And Gonzales is not Bush -- Gonzales can be removed without legally touching Bush. All it would do is prevent DOJ being used as a political asset by Bush.

Notjonothon -- I hear you with regard to not letting this decend into McCarthyism. I will, later tonight, put up a seperate thread on the historical developments in law that may prevent this possibility, and that we should understand as this goes forward.

In the meantime I have a lovely steak dinner more or less on hold, and I want to finish off the cooking before getting into court decisions and new law after the times of McCarthy.

Swopa!

So, Mehlman is a partner in Achin' Gump but the law licenses he holds in DC & Maryland are inactive. Since he can't, therefore, currently practice law -- right? -- one can only imagine what he's bringing to the firm.

If you check Swopa's link, and then slide over to their pro bono page, you'll find this nugget:

In New York, our lawyers have been involved in some of the highest-profile public interest litigation matters in the country, including the defense of New York State’s judicial electoral system.

Pro bono work doesn't have to be done only for the interests and welfare of the community, it can also advance agendas. Helping a child, immigrant, small businessman are all feel-good duties, but surely a judicial system has plenty of lawyers at hand already? Especially in New York! If this was Mississippi or North Dakota or New Mexico perhaps specialist lawyers would be hard to find, but New York???

To the lawyers on this thread from a non-lawyer:

If Goodling takes the 5th is she at risk of disbarment ?

It's true asserting Fifth Amendment right not to incriminate oneself is NOT an admission of guilt, but it is necessarily an admission that you think truthful testimony COULD result in criminal charges against you.

If Federal law/Congressional procedure is like California, the court/Congress could say, you assert Fifth? then we give you immunity. Then if she continues to refuse to testify, she is in contempt.

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