Bloggers on the U.S. attorneys flap and the Fifth Amendment.

Bloggers on the U.S. attorneys flap and the Fifth Amendment.

Bloggers on the U.S. attorneys flap and the Fifth Amendment.

The latest chatter in cyberspace.
March 27 2007 6:00 PM

Taking Five

Bloggers spar over Monica Goodling's decision to take the Fifth in the ongoing U.S. attorneys flap. They also consider the first guilty plea to come out of Guantanamo Bay.

Taking five: Monica Goodling, senior counselor to Attorney General Alberto Gonzales, has refused to testify to the Senate judiciary committee about the firing of eight U.S. attorneys, citing her Fifth Amendment right against self-incrimination. Her lawyers argued that lawmakers had already concluded that members of the Justice Department had acted on political motives. Bloggers debate whether the Fifth Amendment applies here.

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At Talking Points Memo, liberal Josh Marshall parses the letter Goodling's lawyers sent to the Senate committee and concludes that "there's no 5th amendment privilege against testifying before meanies. So the alleged partisanship of the committee doesn't fly. And in any case, the committee doesn't prosecute you for perjury. Unless I'm completely forgetting how this works, all they can do is make a referral to the Justice Department." But a reader at TPM Muckraker, companion site to Talking Points Memo, agrees that the Fifth protects Goodling. Referencing the claim in Goodling's letter that an unnamed DoJ official has blamed Goodling for his own "not entirely candid" testimony before the committee, the reader writes, "Under the federal False Statements statute, 18 USC 1001, it is a felony to cause another person to make a false statement to Congress. Since [Deputy Attorney General Paul] McNulty has allegedly told Senator Schumer that he made a false statement to Congress based on information provided to him by Monica Goodling, Goodling could very well be prosecuted for a Section 1001 violation."

UNC law prof Eric Muller at Is That Legal? takes a different path to the same conclusion: "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." Indeed, Goodling and her lawyers assert that "the potential for legal jeopardy for Ms. Goodling … is very real. One need look no further than the recent circumstances and proceedings involving Lewis Libby." Orin Kerr at The Volokh Conspiracy doesn't get the Libby comparison: "Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity. Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that's not a valid basis for the privilege."

Curt at conservative Flopping Aces thinks the analogy is apt: "People will say 'well if she is telling the truth then there will not be any perjury' which is a very naive way at looking at this.  How about if someone else's memory is faulty and states different times, dates, discussions, etc...as happened in the Libby fiasco? What then? Cough...Libby....Cough..."

Christy Hardin Smith at liberal Firedoglake pinpoints what she calls "the crux of the problem for Ms. Goodling: the cover story hasn't been settled on this one, and in a fluid situation where telling the truth can get you in trouble with the vindictive pit of vipers that work in 'Rove's shop,' she'd rather not have to be honest, thank you very much. … So, why the public feint? Again, I think it's a maneuver to buy some time for behind-the-scenes negotiations."

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Read more about Monica Goodling. Follow the "Gonzo-Meter" to get Slate's take on Gonzales' future. This "Jurisprudence" examines the standoff between the White House and Congress on executive privilege.

Kangaroo court: David Hicks, an Australian man held at Guantanamo Bay, pleaded guilty Monday to providing material support for terrorism. He's the first Gitmo prisoner to admit to helping terrorists.

Conservative Andrew Sullivan, who's long taken a dim view of the administration's torture policies, isn't sure whether to trust Hicks' confession, especially given that the judge threw out two of Hicks' attorneys and that the "judge is quite obviously biased. But there's a mountain of reliable evidence that Hicks was mixed up with some very unsavory characters around the world. We'll never know for sure, of course, because of the Orwellian system Bush and Cheney set up to torture, intimidate and psychologically brutalize 'enemy combatants.' "

At the Counterterrorism Blog, Michael Kraft discusses how the Hicks case "loomed large in the Australian consciousness" this year, despite its relatively low profile in the United States: "The length of the Hicks case, his lack of access to counsel of his choice and questions raised by holding prisoners for so long without a trial of any kind or constitutional protections was … an irritant in the usually good relations with one of our best allies. It is an example of how what is perceived as lack of due process hurts the U.S. image."

Aussie Darryl Mason, blogging at The Ostrayhun, can't get past "the convincing argument his father, Terry Hicks, made that his son would plead guilty to just about anything if it meant he would be set free from his 'living hell'." Mason figures that in the minds of Australians, this argument "will well and truly over-ride the 'justice delivered' claims to be made by the Australian and American governments."

Jeralyn at TalkLeft scoffs at the notion that this is a win for the administration: "Baloney. The plea is nothing but a sign that David Hicks wanted to be free one day, and this was the only way to assure it."

Read more about David Hicks' confession.