What If Monica Isn't Shopping for Immunity?

by emptywheel

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.

Comments

[SaltinWound]

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

[emptywheel]

That's the one, Saltin.

[orionATl]

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.

[mainsailset]

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.

[Kagro X]

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.

[Miles Archer]

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

[emptywheel]

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.

[mainsailset]

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.

[Tilli (Mojave Desert)]

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

Obviously, she's got God on her side.

[William Ockham]

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.

[John Forde]

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.

[Rayne]

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?

[Swan]

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.

[emptywheel]

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.

[Rayne]

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?

[emptywheel]

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.

[Rayne]

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?

[emptywheel]

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.

[Swopa]

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).

[emptywheel]

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.

[Frank Probst]

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.)

[Swopa]

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.)

[Frank Probst]

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."

[Frank Probst]

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...

[Dismayed]

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!