Christy and Steven D and Josh's readers have made compelling cases that Monica Goodling's claimed basis for invoking the Fifth Amendment is not supported by law. But I think some are jumping to conclusions about what the implications of this improper claim are. I'm unconvinced this is just an opening bid in an immunity deal. Here are several reasons why:
- The cost of the lawyers. As many have pointed out, Goodling didn't just lawyer up, she lawyered up big. And while anyone would opt to do so, if they had the cash (hey Goodling--do you have the cash, or are you borrowing it from someone rich like Karl?), 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. Rather, it seems she lawyered up big to try to argue a new interpretation of the law, to try and carve out the meanies clause of the Fifth Amendment. And this is precisely what Goodling's lawyer seems intent on arguing:
your comment ignores the very basis on which Ms. Goodling has asserted her constitutional right... the Fifth Amendment protects innocent persons who might otherwise be ensnared by ambiguous circumstances, as much as it protects those who may have done something wrong.
- Goodling's continued employ at DOJ. Unlike Kyle Sampson, Goodling is still on the DOJ payroll, hidden away somewhere, but still assured of a job (for now). Of course, if I were Pat Leahy, I would question the wisdom of continuing to employ someone at DOJ who had invokved the Fifth rather than allow Congress to exercise oversight, so this continued employ may just be a temporary thing. But they are trying (as they did unsuccessfully with Sampson) to keep her in the fold. So long as she remains employed at DOJ, this suggests that whatever she's doing, she doing with the approval of her bosses.
- The invocation of Scooter Libby. Goodling's lawyers cite the plight of Scooter Libby as what can happen to someone who, rather than takes the Fifth, testifies. Think about this citation! This is a guy who was just found guilty of lying and obstructing an investigation! They're not citing someone who is innocent, they're citing someone who failed to get away with covering up a crime. It just seems to me that Goodling's lawyers are saying, "well, having our firewall lie to cover-up the larger crime doesn't work. So now we're going to try this unique interpretation of the Fifth."
- The consequences. I'm shaky on this part, so correct me if I'm wrong. If Goodling invokes the Fifth for a reason not covered by law, then she can be slapped with a contempt citation and stuck in jail a la Susan McDougal. But who is going to put her in jail for that? Eventually, any attempt to punish Goodling for incorrectly invoking the Fifth would have to go through DOJ--it's the same problem with holding Rove in contempt for refusing to respond to Congress' subpoena, eventually you're relying on Gonzales' DOJ to punish him for it.
Now, I could be wrong. But it just strikes me that Goodling is really the key player in the negotiations between WH and DOJ on these firings. She may be exposed to prosecution if McNulty decides to go after her. But otherwise, if she successfully invokes the Fifth, then Congress loses its ability to see what went through Goodling's hands, to see what the real conversation between WH and DOJ looked like. 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.