Pleading The Fifth

Gonezo’s lawyer won’t testify before Congress.

WASHINGTON — Monica Goodling, a Justice Department official involved in the firings of federal prosecutors, will refuse to answer questions at upcoming Senate hearings, citing Fifth Amendment protection against self-incrimination, her lawyer said Monday.

“The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real,” said the lawyer, John Dowd.

As I understand it people who know they did not break the law generally do not plead the Fifth. It would not even be an option, correct? If so the administration’s defenders, notably quiet around here lately, can choose whether or not to argue directly that Republicans have some inherent right to break the law.

***

Speaking of laws, it’s time to propose Tim F’s Second Law of Interchat! To wit, as online discussions of Republican transgressions lengthen the probability of an attempted Clinton Did It! distraction approaches one.

***Update***

Can anybody guess the statute from which Ms. Goodling is trying to protect herself? Winners get a free subscription to Balloon Juice.






56 replies
  1. 1
    neil says:

    Is Monica going against Gonzo here? I read it as a request for immunity, but I have no idea, really.

  2. 2
    Tim F. says:

    read it as a request for immunity

    No I think it’s just a straight-up Fifth plea. Ask me no questions, I’ll tell you no lies.

  3. 3

    […] Good observation from Tim at Balloon Juice: Speaking of laws, it’s time to propose Tim F’s Second Law of Interchat! To wit, as online discussions of Republican transgressions lengthen the probability of an attempted Clinton Did It! distraction approaches one. […]

  4. 4
    Nikki says:

    From Redstate

    Gonzales has done nothing wrong besides giving fumbling answers to reporters’ questions. If Republicans are not altogether thrilled with Gonzales, so be it. They must put that aside and realize that there is value in the fight if not in the man. It is time for Congressional Republicans to stand together on this for the sake of the party and its future.

  5. 5
    obi says:

    “As I understand it people who know they did not break the law generally do not plead the Fifth. It would not even be an option, correct?”

    5th Amendment: “[no person shall] be compelled in any criminal case to be a witness against himself”

    Correct. This Fifth Amendment protection applies only to those who would incriminate themselves. If no crime was committed, there can be no incrimination.

  6. 6
    neil says:

    What is a straight-up Fifth plea in the absence of a criminal trial or inquest? And what’s the response? Obviously the shit is going to come down a lot harder on everyone else now that one of the co-conspirators has gone into heavy defensive mode, isn’t it?

  7. 7
    cd6 says:

    At least the republicans have a plan for getting out of incriminating themselves.

    Clinton was, as we all remember, caught with his pants down.

    Yeah, I went there, moonbats. Can you handle it?

  8. 8

    Yes, Tim, people who have no fear of incrimination never plead the Fifth. However, you cannot conclude from that fact that someone who pleads the Fifth is necessarily guilty of a crime that has anything to do with the subject of the inquiry — or even of a crime at all.

    For instance, an adulterer is on trial for murder, and pleads the fifth when asked “what were you doing that night?” To answer truly, he’d have to say “I was in bed with my lover”, which would be incriminating, even though it is not criminal behavior in all but a tiny number of states.

  9. 9
    Luke says:

    With Goodling opting for the Fifth, we go from a narrative in which the Democratic Party is a belligerent, partisan force, to something Josh Marshall picked up on regarding the original USA Corruption issue; even if the investigations they launched on various Democrats were totally false, it suggested smoke, and smoke suggests fire.

    Now that Goodling has bothered to take the fifth, it’s kind of like lighting up a signal flare in a dark forest–to mangle the metaphor a bit–and is going to make everyone scrutinize a lot more closely….maybe.

  10. 10
    Tim F. says:

    For instance, an adulterer is on trial for murder, and pleads the fifth when asked “what were you doing that night?” To answer truly, he’d have to say “I was in bed with my lover”, which would be incriminating, even though it is not criminal behavior in all but a tiny number of states.

    That point strikes me as very unlikely. If adultery is not illegal and the witness faces no danger of actually incriminating himself in a legal sense then I strongly doubt that he has a legitimate claim to the Fifth.

  11. 11
    Punchy says:

    demi–doesn’t “incriminate” come from the word “crime”? So doesn’t the desire to “not incriminate” oneself proffer the concept that you’ve committed said offense but don’t want to cop to it?

    I go back to similar analogy–involving Occam’s Razor, bitches. If the wife smells perfume on your shirt, just admit you mistakenly walked thru the Chick Department of Sears and caught some wayward spritzes. Lying first, then pleading the 5th to a harmless act is just insane, and guarenteed to raise a million suspicions. Of course, if you’re really out banging your secretary….perhaps the 5th is all you have.

    Shorter: I think Monica is banging her secretary.

  12. 12

    If adultery is not illegal and the witness faces no danger of actually incriminating himself in a legal sense then I strongly doubt that he has a legitimate claim to the Fifth.

    I was being deliberately subtle. Adultery is not a crime, but it’s absolutely grounds for divorce. And, should you lover, say, be a same-sex meth-selling masseur…

    The courts take a very permissive view of “incriminating” when applying the Fifth.

  13. 13
    LLeo says:

    I’d immediately grant her immunity and compel testemony. That would be the quickest way to get to the heart of this matter.

  14. 14
    Keith says:

    Pleading the Fifth can be challenged, right? You can’t say “I’m pleading the 5th to prevent a fishing expedition” and that be that, correct? It would have to be narrowed down a bit as opposed to just a blanket “I’m not answering anything” because at some point, Congress would claim contempt, and she’d have to come up with some way to rationalize the blanket plea.

  15. 15
    Grrr says:

    It is time for Congressional Republicans to stand together on this for the sake of the party and its future.

    …to protect the Purity of Our Precious Bodily Fluids.

    These clowns have no future. The radical shrinking inner-circle on Redstate can cite military and political history all day long.

    The thing is, they consistently and defiantly draw all the wrong conclusions from history every fucking chance they get.

    Which for me is endlessly entertaining.

  16. 16
    slugger says:

    I am a ACLU contributor. The fifth amendment encompasses a fundamental human right. In today’s prosecutorial world it would be stupid not to use it. Bill Clinton and Martha Stewart should have used it. I will certainly use it if questioned by the authorities.
    It is O.K. to speculate about anyone’s culpability. I think that O.J. did it. It is wrong to deny the protections of the fifth to anyone…I’m liberal enough to extend it to Gitmo or the War on Terror ( or Terra ).

  17. 17
    Pooh says:

    Tim, I think you are off – pleading the 5th is pretty much an absolute right. Demi’s example is a good one, though I think I probably take the hit and admit the adultery as opposed to the murder charge. But that’s me…Admitting that you are an adulterer may not, strictly speaking, be probative of the murder, but it is both going to A) make you look “bad,” and thus give the jury more reason to try to find you guilty, and B) probably damages your credibility.

    And given the nature of the questions likely to be asked here, this seems like a good spot to plead the fifth, as every question from the Dems is going to try to elicit and incriminating response.

  18. 18
    Perry Como says:

    Why don’t we hear more about all of the Justice Department officials that aren’t pleading the 5th? This is just more moonbattery. There is no “there” there.

  19. 19
    neil says:

    Tim Russert could’ve plead the 5th instead of testifying that he’s an utter hack in the Libby case, is that what you’re saying?

  20. 20

    For instance, an adulterer is on trial for murder, and pleads the fifth when asked “what were you doing that night?” To answer truly, he’d have to say “I was in bed with my lover”, which would be incriminating, even though it is not criminal behavior in all but a tiny number of states.

    So are you saying that Monica was in bed with Bill Clinton on the night that these emails were sent?

  21. 21
    Perry Como says:

    And given the nature of the questions likely to be asked here, this seems like a good spot to plead the fifth, as every question from the Dems is going to try to elicit and incriminating response.

    How can you plead the 5th if no crime has been committed? It seems that pleading the 5th could be used to avoid giving any testimony if the right is as broad as you claim.

  22. 22
    milo says:

    Will she get the same treatment as Susan MacDougal?
    Nah. IOKIYAR.

  23. 23

    Demi’s excuse reminds me of an old song titled the Long Black Veil…

    Ten years ago on a cold dark night
    Someone was killed ‘neath the town hall light
    Just a few at the scene, and they all did agree
    That the man who ran looked a lot like me

    The judge said “Son, what’s your alibi?
    If you were somewheres else, then you won’t have to die”
    But I spoke not a word, tho’ it meant my life
    For I’d been in the arms of my best friend’s wife

    Chorus:
    She walks these hills in a long black veil
    Visits my grave when the night winds wail
    Nobody knows, nobody sees
    Nobody knows, but me

    The scaffold is high, eternity near
    She stands in the crowd, she sheds not a tear
    But sometimes at night when the cold winds moan
    In a long black veil, she cries o’er my bones

    Chorus

    Man, that song has quite a history. I have the Chieftains and Dave Matthews Band renditions. I need to find the Johnny Cash album it’s on.

  24. 24

    Actually, TOS, I was listening to Gary Moore’s version of the same theme, _Over the hills and far away_, when I was thinking up my example. It doesn’t have to do with a murder, but a robbery, and the protagonist doesn’t wind up hanging, but it’s the same myth, in the broad sense.

  25. 25
    Denied says:

    You can’t plead the 5th based on the theory you might perjur yourself if forced to testify. According to her letter that’s their theory. It’s absurd.

  26. 26

    >Winners get a free subscription to Balloon Juice

    You mean there’s a premium version of the site??

  27. 27
    Shabbazz says:

    Man, that song has quite a history. I have the Chieftains and Dave Matthews Band renditions. I need to find the Johnny Cash album it’s on.

    Make sure you check out The Band’s version while you’re at it.

  28. 28

    I think I probably take the hit and admit the adultery as opposed to the murder charge. But that’s me

    And I’m sure most attorneys would give that advice. Nobody ever said anyone had to exercise their rights wisely, after all.

  29. 29
    Grrr says:

    Someone left the cake out in the rain
    I don’t think that I can take it
    ’cause it took so long to bake it
    And I’ll never have that recipe again… Oh, no!”

    Man, that song has quite a history.

  30. 30
    fishbane says:

    Pleading the Fifth can be challenged, right?

    It can be challenged, of course, but it is a nearly absolute right. A prosecutor can’t make you testify against yourself in this country. (This has been eroded somewhat in the recent past, but with regards to speech, is still pretty sancrosact.)

  31. 31
    Pb says:

    Can anybody guess the statute

    I’ll start the guessing off, with 18 U.S.C. § 1621.

  32. 32
    Dreggas says:

    Pb Says:

    Can anybody guess the statute

    I’ll start the guessing off, with 18 U.S.C. § 1621.

    I am betting something more along the lines of conspiracy or something. She was in on the purge and I am betting she knows whether or not, in some cases, the ones being “purged” were being purged in order to shut down investigations ala Lam. It’s either Conspiracy or obstruction.

  33. 33
    Pb says:

    She was in on the purge

    So would that at least qualify as ? purgery? :)

  34. 34
    DougJ says:

    I just heard Bill Kristol say that the White House would “double down” or “surge” by firing more attorneys.

  35. 35
    Jake says:

    Could this also be Goodling’s way of saying “Let’s make a deal?”

  36. 36
    Bubblegum Tate says:

    So would that at least qualify as ? purgery?

    Booooo!

  37. 37
    grumpy realist says:

    Well, Ms. “Pleading the Fifth” just shot another hole in the leaky boat of Gonzales’ excuses. We’ve been banged on the head with “if you’re innocent, you have nothing to fear!” so much that the, um, aura around this must be pretty stinky, even to a dimwit pundit audience…..

    Oh, and Glenn’s most recent posting has been brilliant.

  38. 38
    RSA says:

    You can read Goodling’s lawyer’s letter to Congress here. The lawyer essentially says that it’s a witch hunt–all you have to do is look at what happened to Scooter Libby. (Right. . .)

    What I’m wondering is why more people don’t plead the fifth in front of Congress rather than go to jail, say, for contempt of Congress. I guess you have to make a plausible case that you might incriminate yourself? Otherwise you’d think journalists (and in an earlier era, those who testified before HUAC) wouldn’t have to worry about going to jail. Who decides, in any case?

  39. 39
    zmulls says:

    The 5th *is* an absolute right, and it is meant to allow someone to protect someone’s right in the judicial system to keep the burden of proof on the state to establish guilt.

    You aren’t compelled to to help the state prove you committed a crime — and you are innocent until proven guilty. That’s the meaning of the 5th, and it’s an important principle.

    In cold, hard reality, everyone understands that the 5th is very seldom used by innocent people. If this were a courtroom, she’d be totally within her rights to not take the stand, and if she were being questioned by the police, she has the right to not answer questions.

    But this is a congressional inquiry to determine what happened (whether it’s a crime, a non-criminal but impeachable offense, a non-criminal non-impeachable but morally wrong offense, or nothing at all). Crime may or may not play a part in it. And Congress can certainly decide her answers are worth letting her off the hook for any potential criminal involvement.

    If she’s immunized, she can not plead the 5th, as I understand it. And I’d so love to see that testimony.

  40. 40
    Darrell, D'Souza, Delay and Strauss says:

    Boy, GW has come a long way when World Net Daily is upset with you:

    Attorney General Alberto Gonzales and U.S. Attorney Johnny Sutton, both already under siege for other matters, are now being accused of failing to prosecute officers of the Texas Youth Commission after a Texas Ranger investigation documented that guards and administrators were sexually abusing the institution’s teenage boy inmates.

    Among the charges in the Texas Ranger report were that administrators would rouse boys from their sleep for the purpose of conducting all-night sex parties.

    ….

    Baumann’s letter went so far as to suggest that the victims may have willingly participated in, or even enjoyed, the acts of pedophilia involved: “As you know, consent is frequently an issue in sexual assault cases. Although none of the victims admit that they consented to the sexual contact, none resisted or voiced any objection to the conduct. Several of the victims suggested that they were simply ‘getting off’ on the school administrator.”

  41. 41
    RSA says:

    That is one crazy, nasty article. I can only hope it’s an exaggeration–hey, it turns out that the author is one Jerome Unfit for Command Corsi. I’ll be able to sleep tonight.

    But you’re right, it is a piece you wouldn’t expect to see in WND. Even Karl Rove takes a hit.

  42. 42

    […] Grad student Tim decided to hold forth on the Fifth Amendment to the U.S. Constitution today. We should listen to him too, since grad students are, like, y’know, more smarterer than most of the rest of us. According to Tim, a former Department of Justice aide has indicated that if she is called to testify about the US Attorney firings, she will take the Fifth, therefore: As I understand it people who know they did not break the law generally do not plead the Fifth. It would not even be an option, correct? […]

  43. 43
    TC says:

    The Fifth Amendment is an option to anyone, whether or not they think they’ve committed a crime. Why you’d want to plead it if you don’t think you’ve committed a crime is beyond me, but it’s still available. Even then, you can only plead the Fifth to those things that might incriminate you.

    You can plead the Fifth before Congress, because a prosecutor could take a look at your later statements and press charges based on them. That is why, when someone says they’re going to plead the Fifth, a prosecutor or inquiry will often grant immunity, so that they don’t have to fear later charges. Bottom line, though, is that everyone now smells smoke and is pretty sure there’s a fire going on.

  44. 44
    Neil Peart says:

    TC is right. Given what I have seen Goodling put in writing in her emails, at the very least she needs to be concerned about a perjury charge. At worst, there is a conspiracy. There is also the potential for civil liability if any of the USA’s decide to pursue defamation claims against Gonzo, et. al. (although that isn’t a reason to invoke the 5th).

  45. 45
    Neil Peart says:

    BTW, 18 U.S.C. § 1621 is one correct answer.

  46. 46
    Evilbeard says:

    I’ve figured it out! I know why everyone in the justice department is so scared. The truth is Alberto Gonzalez killed Vince Foster.

  47. 47
    cleek says:

    Can anybody guess the statute

    113B 2339

  48. 48
    Justin says:

    The fifth amendment is not just for when you are guilty, people. I can’t believe I even read that on this page.

    That said, I think what’s going on is pretty obvious when they say “The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real.” In other words, if she tells the truth, the shit is going to hit the fan.

  49. 49
    grandpa john says:

    While pleading the 5th is not an actual admission of any crime or guilt. What matters here is the perception planted in the publics mind, and most of us when seeing someone take the 5th assume that there is something to hide.
    And in a curious irony, this perception is heightened by the fact that we have been inundated with the reminder in the case of illegal wiretaps and such, that “Why should we worry if we have nothing to hide. Therefore then for an administration official suddenly to exhibit worry increases the perception that indeed she does have something to hide.
    For someone who was looking for Johhny Cash’s ” Long Black Veil” it can be found on a 1995 CD by Castle Communications titled “The Best of Johnny Cash”

  50. 50
    grandpa john says:

    As an aside, can anyone explain why the blogosphere can have comment areas that allow all sorts of punctuation and formatting but the Washington Post cannot???

  51. 51
    grandpa john says:

    As an aside, can anyone explain why the blogosphere can have comment areas that allow all sorts of punctuation and formatting but the Washington Post cannot???

  52. 52

    […] Pleading The Fifth […]

  53. 53
    Dress Left says:

    There are no dumb questions – just dumb Press Secretarys.

    Q: The President said that the principle at stake here with executive privilege is that the President needs to get candid advice from his advisors, right?

    MR. SNOW: That is correct. What the President has talked about with close staff members is privileged communications.

    Q: But earlier, when I asked was the President informed of this decision, did the President sign off on U.S. attorneys being fired, you said the President has no recollection of being informed of all this.

    MR. SNOW: Correct.

    Q: So, if it was other people and the President wasn’t in on this decision, were his advisors really advising him on this? Is this really privileged communication involving the President and his advisors?

    MR. SNOW: There are a number of complex legal considerations in here, and I’m not going to try to play junior lawyer

    Q: But aren’t you having it both ways? If you’re saying the President wasn’t in the loop, but we need to cite executive privilege for the President’s communications —

    MR. SNOW: No, what you are saying is, are conversations that didn’t take place privileged? Well, no — they didn’t take place.

    Q: So what are you protecting, if they didn’t take place?

  54. 54
    Pb says:

    So, here’s another Fifth Amendment analysis, and then there’s another statute cited in the update: 18 USC 1001 (poster BK over at TPM should get credit for that one).

  55. 55
    Steve says:

    You idiots will never be my lawyers.

    So democrats are on another witch hunt where there is no indication of any wrong doing at all. But you want to get a bunch of testamony about nothing so you can compare and contrast to see who you can send to jail for bad memories. like Libby. Yeah. It is a witch hunt and you bastards are building a pyre for who ever is stupid enough to answer questions.

    If I had to testify before democrat congress I would take the fifth too. Because of the hate filled morons like those on this site and those in congress who feel beholden to such idiots.

  56. 56
    Tim F. says:

    You can always tell the guys who spend most of their time in a womblike wingnut echo chamber. Reality just smells different over there.

Trackbacks & Pingbacks

  1. […] Pleading The Fifth […]

  2. […] Grad student Tim decided to hold forth on the Fifth Amendment to the U.S. Constitution today. We should listen to him too, since grad students are, like, y’know, more smarterer than most of the rest of us. According to Tim, a former Department of Justice aide has indicated that if she is called to testify about the US Attorney firings, she will take the Fifth, therefore: As I understand it people who know they did not break the law generally do not plead the Fifth. It would not even be an option, correct? […]

  3. […] Good observation from Tim at Balloon Juice: Speaking of laws, it’s time to propose Tim F’s Second Law of Interchat! To wit, as online discussions of Republican transgressions lengthen the probability of an attempted Clinton Did It! distraction approaches one. […]

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