Gonzalez's White House Liaison: What 5th Amendment Right?

Monday brought us the most interesting bit of news yet in the US Attorney scandal, more interesting than that Carol Lam was fired for investigating Republican bribery scandals, more interesting even than knowing that the White House was planning on making their best opposition researcher the US Attorney for Hillary Clinton's original home district. US Attorney General (and former Bush family lawyer) Alberto Gonzalez's own lawyer and White House liaison, Monica Goodling, is one of the people who was invited to testify to Congress about why those 8 US Attorneys were fired. And on Monday she had her lawyer (that's Bush's lawyer's lawyer's lawyer, if you're having a hard time keeping track) send the investigating committee a letter declining to testify, "invoking my constitutional right." (Laurie Kellman, "Gonzalez aide won't testify in Senate," AP, 3/26/07.) By which she presumably means that she is invoking the right enshrined in the 5th Amendment of the Bill of Rights, her right not to be compelled to testify against herself ... wait for it ... in a criminal proceeding.

What the hell criminal proceeding are we talking about here? Nobody except maybe one or two hardcore conspiracy theory nuts has even suggested that any part of this scandal was actually illegal! There is no criminal proceeding for her to refuse to testify in because, so far as we know yet, there isn't any crime to accuse her or anybody else of! So what the heck right is she actually asserting here, through her own lawyer? Let me give you some relevant background. My apologies, but this is going to be awfully long.

Congress has virtually unlimited authority to invite witnesses to voluntarily testify in front of any committee about basically anything. If some Congressional committee wanted to have investigative hearings about whether or not it's possible for a space-faring race like the Klingons to have developed warp drive without having any verbs of being in their language, they could invite everybody from the surviving Star Trek writers to professional linguists to the Klingon Language Society to Jeri "7 0f 9" Ryan to come talk to their committee. Some Congressional hearings are, in fact, just barely short of being that silly. But the two circumstances under which such hearings are most likely are when Congress is considering legislation on some issue and wants expert opinions, or when there's some issue in any part of the Federal government that's funded by Congress -- and that means, by the way, the whole Federal government -- where they might have a problem with how that money was spent. That latter is referred to as their "oversight function," and that's what's applicable in this case. Even though the Justice Department is part of another branch of government, one that they can't give any orders to except by passing legislation, they have unlimited authority to call up anybody who collects their paycheck from the federal treasury and ask them to explain to the committee what they did on any given day and why.

I'll take this opportunity to explain "executive privilege" even though it doesn't apply in this case (so far as we know; it'd be really weird and gothic if it did). Richard Nixon, during the Watergate hearings (which were not yet even the beginnings of an impeachment trial), asserted a new Presidential constitutional power called "executive privilege." He asserted, through his lawyer Fred Fielding (that would, oddly enough, be Bush's lawyer now -- small world), that because the President has the duty to make the best decisions for the country, he has to be able to receive candid advice from people who might not want to be publicly known to have given him that advice, and therefore it is unconstitutional to ask anybody what they told the President. And it is extremely important to point out here that this "right" has never been tested in any court, because every White House that has asserted it has eventually folded and given in and let the person be subpoenaed to testify. The irony of executive privilege claims in this case is that Gonzalez is asserting his right to not tell us what he told the President, while both he and the President are telling us separately that he never told the President anything. So, what executive privilege are we talking about here? But that has nothing to do with Monica Goodling, who isn't being asked about her conversations with the President and who hasn't asserted any kind of executive privilege right. No, she's asserted her 5th Amendment right, remember? Let's get back to that.

When Congress invites you, or any other citizen, including any federal employee, to testify voluntarily, the person that they invite has no obligation whatsoever to do so. Pretty much everybody does, unless they're obligated by contract to be on the other side of the globe at the same time or something equally improbable, because frankly, most people think that getting to tell Congress your opinion, in open hearing and on the record in front of the C-SPAN cameras, is considered an even bigger treat than just being on TV. These are some of the most important people on the planet and they want your opinion about what they should do; how can you not be flattered? But periodically somebody will tell them to take a hike, some crabby person who suspects that Congress is prying into something that that person just doesn't want to talk about. It's risky business doing so, it makes you look guilty and malevolent and just plain un-American, but it can be done and occasionally is. At that point, Congress has two options: do without your testimony, or command you to show up anyway, that is to say, issue a subpoena. At that point it's no longer optional on your part. Period. Either you show up, or the federal marshal's service shows up at your door with big guns and handcuffs and pepper spray and body armor and armored vehicles and they haul you off to rot in a federal prison until you change your mind. That's the law.

But if they subpoena you, and you do show up, and they ask you any question that, if you answered it truthfully, would amount to a confession of an indictable criminal act, you still have your right to not answer, as guaranteed by the 5th Amendment to the US Constitution. But that's the only time you have that right, that is to say, if the answer is regarding some theoretical or actual crime. If what they're asking you about isn't illegal, or even if it is illegal now but wasn't when you did it, you still have to answer, or else have that same meeting with unfriendly federal marshals and then federal prison officials. That's called "contempt of Congress." As the "unfriendly 10," aka the "Hollywood 10," found out when they were asked by the House Un-American Activities Committee in 1947 if they were, or had ever been, members of the US Communist Party. Membership in a political party, even the Communist Party, wasn't illegal, so they had no right to refuse to answer. They refused to answer, mistakenly invoking their non-existent 5th Amendment right not to testify, and were convicted of contempt of Congress. But that was an unseemly sight, one that made HUAC look just as bad as it did the Hollywood 10. So frequently Congress will back off when a witness tells them that if you call me, I'll just 5th myself over and over again. But not always.

What's more, Congress has one last trick up their sleeve. Congress can grant any witness immunity for any crimes that they testify truthfully about in front of Congress. And sometimes they do. At which point any 5th Amendment right they had went right out the window. However, from that point on it becomes almost completely impossible to convict them of those crimes, since any evidence that turns up is likely to be excluded because of the possibility that prosecutors wouldn't have known to look for it if they hadn't testified to Congress. So grants of immunity are scarce. But not unheard of. And if there was anything likely to make Congress want to grant immunity, it's when the witness tells them that they have knowledge of a crime that Congress didn't even know, yet, had been committed!

So the spin from the Bush administration is no, no, it's not anything like that. What she's invoking is her right not to commit accidental perjury. She has a right not to be asked any questions, under oath, that Congress already knows the answers to, just because somebody in Congress is hoping that she'll either lie or make a mistake and be guilty of perjury. That's called a "perjury trap," and it's illegal.

Uh, somebody correct me if I'm wrong, but my understanding of the relevant law is no it's not, and no it isn't.

I will also say, as an aside, that it's side-splittingly funny to me to hear a Republican say the words "perjury trap." Because there is such a thing as a "perjury trap." It's not a law, though. It's a guideline based on court rulings. The rulings in question said that because you can compel people to testify under oath in a civil case during the deposition phase, the part of the trial where each side establishes as many of the facts of the case as can be agreed upon, you can't convict someone of perjury for compelled testimony if the only reason that you asked them was in hopes of trapping them into committing a new crime. So there is a federal guideline, not law, for prosecutors, not Congress, that says that prosecutors can't ask any witness during a civil deposition, not in a Congressional hearing or in a courtroom, any question to which they already know the answer. And that guideline is what's called a "perjury trap." And what is so side-achingly funny about hearing Republicans invoke it, aside from the fact that they're getting it wrong, is that that's exactly what Ken Starr tried to do to Bill Clinton in the federal civil suit regarding his alleged sexual harassment of Paula Jones back when he was governor of Arkansas and she was one of his subordinates. The question that Bill Clinton is alleged to have lied about, the question about his sexual relationship with a current subordinate, Monica Lewinsky, is a question that Ken Starr was prohibited by federal guidelines from asking, and if any evidence regarding Bill Clinton's lie had been tried to be used against him, the courts would have been obligated to throw it out. And now here we are having someone from that side, the side that tried to frame Bill Clinton for perjury, screaming "perjury trap!" Could it possibly be any funnier?

So since the "perjury trap" thing is clearly either a lie, or a stupid mistake that won't last 24 hours, the question remains: what actual crime does Monica Goodling know about, that she was complicit in, that she can't testify to Congress about without self-incriminating?