March 27, 2007
Monica Goodling Has A Valid Basis For Asserting The Fifth Amendment Privilege
Josh Marshall asks his lawyer-readers to opine on whether Monica Goodling is stating a valid basis for invoking the Fifth Amendment privilege in response to a subpoena by the Senate Judiciary Committee.
The answer: Yes, rather clearly so, unless there is no reasonable scenario under which she fears that a prosecutor could take something she says before the committee as a link in a chain leading to evidence of wrongdoing. (Hoffman v. United States, 341 U.S. 479, 486 (1951).)
The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).) "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." (Slochower v. Bd. of Higher Ed. of the City of New York, 350 U.S. 551, 557-58 (1956).)
A careful defense lawyer would be especially justified in advising his or her client to consider taking the Fifth in a highly charged political environment such as the Senate Judiciary Committee's investigation into the firings of U.S. Attorneys and the alleged minimization (dare we say "cover-up?") of the role of the Attorney General and the White House in those firings. It is important to remember that "a witness innocent of wrongdoing may well refuse to answer a question not because he fears conviction, but because he fears unfounded prosecution, a risk which every one runs at all times, theoretically at least." (Lewis Mayers, Shall We Amend the Fifth Amendment? 4 (New York: Harper & Brothers, 1959).)
The Akin Gump attorney probably did not need to broadcast his attack on the fairness of the atmosphere in the Judiciary Committee as he did; that does indeed smack of politics. But that doesn't mean that the advice he has given his client is bad. It is not. It is of course possible that the invocation of the Fifth is in bad faith, and that neither Ms. Goodling nor her attorney has any basis at all to fear her eventual prosecution, either for perjury, for making false statements, for obstruction of justice, or some other crime. But that strikes me as quite unlikely.
I understand and share the disgust over the firing of these U.S. Attorneys, over the politicization of the institution of the United States Attorney's Office in this administration and the elevation of political loyalty as a value, and over the White House's and the Attorney General's efforts to "manage" the crisis. But that's no reason to ditch the important values that the Fifth Amendment privilege serves.