March 2007
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Day March 28, 2007

Monica Goodling and “Pleading the Fifth” to Avoid Congressional Testimony

Over the last couple of days, we’ve heard that Monica Goodling, counsel and aide to Attorney General Gonzales, will “take the fifth” to avoid testifying in front on Congress, unlike Kyle Sampson (who testifies tomorrow). At first blush I didn’t think much about this, because it seemed like a generic stone-walling tactic by folks who are trying to protect Gonzales.

But looking at the actual language of the Fifth Amendment, I’m wondering whether Goodling can actually refuse to testify using the Fifth Amendment in this case:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…

Of course, I’ve highlighted the relevant language above.

Goodling is likely relying upon everyone, including Congress, believing that because she is under oath, to give testimony when called would constitute “being a witness against herself.” This reading of the Fifth Amendment is exactly what causes this to be a potential controversy.

But one rule of constitutional construction, advocated especially by “strict constructionists,” is that we have to pay attention to the actual sentences and language itself — we don’t get to pick and choose which words, or clauses, or even sentences to which we pay attention. So when the language says, “nor shall be compelled in any criminal case to be a witness against himself,” doesn’t it seem like this language applies to….criminal cases? Is a Congressional investigation a “criminal case?”

Clearly not.

Could a criminal case arise out of misconduct in a Congressional investigation?

Clearly.

Does Goodling run the risk of incriminating herself by testifying honestly in front of Congress, if she’s engaged in wrongdoing?

Clearly.

Does Goodling run the risk of being charged with perjury if she falsely testifies in front of Congress, to hide that wrongdoing?

Clearly.

Does the Fifth Amendment apply to her during either a trial for some wrongdoing, or perjury for lying about wrongdoing?

Clearly.

Does the Fifth Amendment help her get out from between the horns of this dilemma, and get away scot-free?

Heck no, and Congressional leadership should not let that happen. If Monica Goodling needs to “make a deal” in advance for immunity, as happens seemingly every night on every crime drama on TV, in exchange for her testimony, let the deal-making begin. Because if there’s a deal, it’ll be a public deal, we’ll all know that she struck a deal to protect herself, we’ll hear her account of events, and can move on from there.

This is exactly the same deal we’d give anybody else whose testimony we needed to continue an investigation higher up the “food chain,” and no public servant is above the law, nor above the usual practice of law enforcement.