Wednesday, March 28, 2007

USAs and Pleading the 5th

I am not a lawyer, but I play one on TV. Okay, I don't play one on TV either. As far as you know.

But still, I have a pretty good understanding of what protections are offered by the 5th Amendment to the US Constitution. And I'm pretty sure that the reasons spelled out in Justice Department White House Liaison Monica Goodling's response to Patrick Leahy's request that she testify don't qualify.

Here are some of the reasons she cites:
...certain members of the Senate Judiciary Committee have already reached
conclusions about the matter under investigation...

And? The 5th Amendment protects one from testifying against one's self, not from testifying to hostile Senators. If this were a legitimate use of 5th Amendment protections, then no one would ever have to testify before Congress about anything. Just claim that some of the members have "already reached conclusions" and you're scott free! That's an easy claim to make with no way of disproving it. Bravo!

Of course, I fail to see how testifying in front of those who have "already reached conclusions" means that you are testifying against yourself. In fact, I'm sure it doesn't.

Second, the Committee's Ranking Member, Senator Specter, has suggested that
Senator Schumer is using the hearings to promote his political party. That is not a legitimate reason for the Judiciary Committee to conduct hearings.

Hmm. Where does the 5th Amendment say one has the right to refuse to testify if one feels that there is "not a legitimate reason" for the hearings? I don't see it. Plus, of course, since members of the opposing political party always claim anything the other party does is politically motivated, taking the word of a member of the opposing party as prima facie evidence that an action is politically motivated would, once again, mean no one has to testify before Congress ever. Which is also not a right enumerated in the 5th Amendment.

Third, and related to the second reason, Senator Specter has publicly raised questions about the the basic fairness of the Committee's inquiry and lack of

Specter's statement coming from a Fox News broadcast, of course. Once again, I see nothing in the 5th Amendment enumerating a right not to testify before Congress if one simply feels the inquiry is unfair or lacking in "objectivity." And, of course, we once again cannot take a partisan politician's word as prima facie evidence of such, since the opposing party always questions the fairness and objectivity of hearings called by the other party, whether there is basis for such a claim or not.

But then, there's this bit of legal craziness:

It is not uncommon for witnesses who give testimony before the Congress to face
criminal investigations and even indictments for perjury, false statements, or obstruction of congressional proceedings...

Accordingly, Ms. Goodling will not answer questions before the Committee or its staff under these circumstances. The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Lewis Libby.

First off, the 5th Amendment protects one from having to give testimony against one's self. It does not let witnesses off the hook just because they are afraid of the legal consequences of the act of giving the testimony itself. The content of the testimony is the important factor: Is she being asked to give testimony that will incriminate her due to actions she took in the past? If not, she must testify. The 5th Amendment does not have anything to do with whether testifying, in and of itself, will lead to legal consequences, since if that were true, we would once again be saying that no one has to testify under oath ever, because jeopardy of charges of perjury, making false statements, and obstruction of justice are always attached.

Cutting through the bullshit, she is arguing, in essence, that she won't testify because she can't lie without fear of being brought up on charges of lying. That's what happened to Libby: he lied under oath and got charged for it. If she has evidence of a vast conspiracy to charge her with perjury or making false statements even if she tells the truth, then she should present it. If she has no evidence on which to base such a claim, then she has no leg to stand on.

There is only one legitimate objection listed: that she is one of the people named as failing to give a "senior Department of Justice official" information that would have prevented that official from giving incorrect testimony to Congress. Of course, this is not sufficient reason to refuse to appear before the Committee at all, since she can answer questions unrelated to this issue while invoking her 5th Amendment rights if she is asked questions relevant to this issue. This is her real objection.

The other objections are entirely about public relations and an attempt to make the entire proceedings look illegitimate. Her accusation that the Committee is playing politics is nothing more or less than playing politics with the Constitution and a rank attempt to abuse the important rights enumerated in the 5th Amendment.


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