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DOJ Won't Object to Immunity for Monica Goodling:
DOJ's letter is here. Gonzales and McNulty had recused themselves, so the letter was written by the Inspector General and OPR.
Allan:
I thought the Solicitor General was the next in line after the AG and the DAG.
5.7.2007 6:27pm
18 USC 1030 (mail):
He is, And that is why the SG is currently acting AG in this matter. But, because OPR is conducting an investigation, they were given the decision in order to protect their (possible) criminal investigation.
5.7.2007 6:30pm
Anderson (mail) (www):
Interesting. I propose a guessing game for the number of times Goodling will utter some variant of "I don't remember" during the hearing.

(Or you could make a drinking game out of it, but that would pose serious health risks.)
5.7.2007 6:48pm
18 USC 1030 (mail):
Anderson: however, it would be a great way to spend time the week after law school finals...
5.7.2007 7:09pm
U.Va. 2L:
Anderson: however, it would be a great way to spend time the week after law school finals...

Well, I know what I'm doing in my week off now.
5.7.2007 7:20pm
anonVCfan:
I always thought UVA people were too cool to spend their vacations playing the "Monica Goodling drinking game." Play some softball instead.
5.7.2007 7:36pm
Just an Observer:
I do hope that Paul Clement manages to stay above the fracas in the DOJ mess. He is about the only senior official there who commands any respect from me.
5.7.2007 7:44pm
Anderson (mail) (www):
Maybe the Congress will ask Goodling some questions about breasts. (Link actually quite safe for work.)

I do hope that Paul Clement manages to stay above the fracas in the DOJ mess.

You mean, this Paul Clement?

During a recent Supreme Court argument, the justices pressed a Bush administration lawyer to explain just how far the president's claim of sweeping powers over accused terrorists could go.

"Suppose the executive says, 'Mild torture we think will help get this information.' ... Some systems do that to get information," Justice Ruth Bader Ginsburg asked at the April hearing.

"Well, our executive doesn't," insisted the government's lawyer, Paul Clement. He also assured justices that the United States would stand by its international commitments that prohibit torture.
5.7.2007 7:49pm
c.f.w. (mail):
Goodling should have a strong incentive not to take the "do not recall" approach. The immunity grant does not make her immune from prosecution for lying in her testimony. So if she falsely claims "I do not recall" she gets herself back in hot water.
5.7.2007 8:14pm
Oren (mail):
CFW - Given Libby's fate, I'm pretty sure all future executive branch testimony will be well vetted for what content can and cannot be conveniently forgotten.

Plus, MG can't lie - she's a good Christian (she went to Regents) and therefore cannot possibly lie after having sworn on the Word of God. Contrast this with Mr Gonzales, a graduate of godless Harvard Law, who can probably lie in his sleep.
5.7.2007 8:31pm
F. Reede (mail) (www):
anonVCfan:
That's a common mistake. Softball is actually for during classes/exams only. Once the semester's over, it's exclusively DOJ-related drinking games.
5.7.2007 9:29pm
Luddite:
I find it interesting that, given Goodling's purported basis for claiming protection under the Fifth Amendment (that she feared a perjury trap), a grant of immunity for testimony will not help her; immunity doesn't protect her from liability for for perjury in the hearing, so it is not clear how immunity will remove her reason for not testifying. Of course, Professor Kerr has already suggested that fear that you might lie is not an apparent basis for immunity; but if she now goes ahead and testifies, it is clear that the whole "perjury trap" line was merely bluster to begin with.
5.7.2007 9:46pm
FormerDOJlawyer:
Anderson says: Interesting. I propose a guessing game for the number of times Goodling will utter some variant of "I don't remember" during the hearing.

Remember that Goodling will have immunity; she will be able to spill the beans and not face any ramifications.
5.7.2007 9:50pm
K:
Perhaps Goodling will reject the offer. These are odd times and the rap for the contempt doesn't look all that bad.
5.7.2007 10:45pm
Taltos:
Goodling should have a strong incentive not to take the "do not recall" approach. The immunity grant does not make her immune from prosecution for lying in her testimony. So if she falsely claims "I do not recall" she gets herself back in hot water.

How exactly could one possibly prove someone remembered something at a specific point in time short of their stating so at a later date? I know the hatecrimes folks want to be the thought police, but I don't believe they've actually managed to perfect mind reading technology yet.
5.7.2007 11:00pm
Anderson (mail) (www):
Plus, MG can't lie - she's a good Christian

Ah, but don't underestimate the power of theology.

Remember that Goodling will have immunity; she will be able to spill the beans and not face any ramifications.

I doubt that Goodling is a good Christian, but she has been a good Bushie -- she may well choose to martyr herself for the cause. (How long did Susan McDougal stay in jail?)

Contrast this with Mr Gonzales, a graduate of godless Harvard Law, who can probably lie in his sleep.

What would you have the man do -- stand?
5.7.2007 11:02pm
neurodoc:
The immunity would not extend to anything outside the testimony she gives, right? And since the point of calling her as a witness is not to determine how good a memory she has, but rather to get at the facts, then to the extent she cannot remember "facts", she won't be protected by the grant of immunity. The poorer her memory, the less meaningful to her the grant of immunity and the less protection against prosecution in the future. No?
5.7.2007 11:15pm
Dave Hardy (mail) (www):
Plus, MG can't lie - she's a good Christian (she went to Regents) and therefore cannot possibly lie after having sworn on the Word of God.

So by sleight of hand she substitutes a Koran?

Yup, if it's use immunity... spill her guts. Given that the Demos will use whatever is said for publicity value, even if anyone had a prosecutable case, it'll be impossible to find a jury that hasn't been contaminated.

Worked like a charm for Ollie North. At the time I said -- they got the PR hits, but ensured an acquittal. Another atty said (as the trial court later did) -- just ask the jurors if they could put aside what they'd heard, etc.. I responded (as the court of appeals did) -- may work for ordinary press coverage, but won't fly when the 5th Amendment is involved, and jurors have heard of the immunized testimony.
5.7.2007 11:30pm
badger (mail):

How exactly could one possibly prove someone remembered something at a specific point in time short of their stating so at a later date?


Well, she earlier claimed that she had something to testify to that could potentially incriminate herself, so she'll have to be able to remember that.
5.8.2007 1:15am
Oren (mail):

Well, she earlier claimed that she had something to testify to that could potentially incriminate herself, so she'll have to be able to remember that.


That's a brilliant first question - tell us what you did that was illegal!
5.8.2007 2:14am
fasdbfh (mail):
I don't remember the priest telling me when I went to Confession when I was a kid, "Well, Lance, it was wrong of you to disobey your mom and talk back to her like that, but since you set the table every night and do your homework and sent your aunt a birthday card, what the heck! You're a good kid. Your sins are forgiven automatically. No need for you to do any penance." 糖尿病 文秘 心脑血管 高血压 高血脂 冠心病 心律失常 心肌病 中风 糖尿病症状 And maybe it's happened a few times and I haven't heard about it but I can't recall a judge ever letting somebody walk on the grounds the crook was a good guy and his friends really like him.
5.8.2007 4:43am
John Herbison (mail):
Dave, Oliver North was in fact found guilty as to three counts of a twelve count indictment. The grounds for reversal of his convictions were unrelated to innocence in fact.
5.8.2007 5:44am
percuriam:
John Herbison, I think Dave was referring to Poindexter. If Congress asks Goodling about her involvement in the vetting of line AUSAs, I think a potential prosecution is pretty much an impossibility. Who wants to handle that Kastigar hearing? any volunteers?
5.8.2007 9:47am
anonVCfan:
F. Reede, thanks for the clarification.
5.8.2007 10:01am
badger (mail):

That's a brilliant first question - tell us what you did that was illegal!


I'm a little sarcasm-deaf online so I'm not sure how to take your response. That question (phrased differently, of course) would work due to the immunity, right? They could ask her her basis for her original 5th Amendment claims and she'd be prevented from reasserting the 5th (due to immunity) or saying she couldn't remember (because...come on).
5.8.2007 10:32am
Justin (mail):
One can assert the Fifth Amendment even if they believed they have done nothing illegal, if they have an objectively reasonable belief that their testimony would be used against them in a criminal proceeding.

So you might get something like "blah blah blah, I did nothing wrong, but you would have thought X was bad."

Of course, if X was something like "being Christian," or "working with Gonzales on a day to day basis," I'm gonna throw up.
5.8.2007 10:40am
NickM (mail) (www):
That she works for the DOJ is itself something the prosecution would need to prove at a trial. Yes, it would be extremely easy for them to prove without her testimony, but that still doesn't allow the prosecution to force her to testify to it without an immunity grant.

As for asking her what possible testimony she thought might incriminate herself, she still has the attorney-client privilege.

Nick
5.8.2007 3:50pm
Justin (mail):
"As for asking her what possible testimony she thought might incriminate herself, she still has the attorney-client privilege."

This I doubt. She's waived that privilege by invoking the Fifth Amendment. Once waived, she can't reassert it.
5.8.2007 5:37pm
Anderson (mail) (www):
This thread seems done, but since I was catty about Paul Clement above, I should include this, from the 7th Cir. Judicial Conference dinner:

Justice Stevens mentioned near the end of his remarks that one hears a lot these days about Department of Justice officials appointed on bases other than merit, but that Paul Clement was unquestionably appointed on merit and that he is one of the best Solicitors General Justice Stevens has heard argue. Justice Stevens did not mention this fact, but the group to which he was favorably comparing Paul consists of Bob Bork, Wade McCree, Rex Lee, Charles Fried, Ken Starr, Drew Days, Seth Waxman, and Ted Olson. The first 6 of those SGs all were court of appeals judges or tenured law professors (at Yale, Harvard, or BYU) before becoming SG. All were much older and more experienced when they became SG than Paul Clement was when he became SG before reaching the age of 40.

For any Justice to compare Paul favorably to his distinguished predecessors is noteworthy, given Paul's youth. It is more noteworthy still for the praise to come from the Justice who wrote Hamdan, and who probably votes against the Bush Administration more than any other Justice.
5.8.2007 5:45pm
NickM (mail) (www):

"As for asking her what possible testimony she thought might incriminate herself, she still has the attorney-client privilege."

This I doubt. She's waived that privilege by invoking the Fifth Amendment. Once waived, she can't reassert it.


That would be the case if she had been sworn in and invoked one privilege but not the other (although courts may choose to let her later add a privilege missed the first time around if she hasn't answered questions in the meantime that amount to a positive waiver). But here, she has announced through counsel that she will assert a privilege, but hasn't actually been sworn in.
Quoting Time
"[H]er Washington lawyer, John Dowd, invoked her Fifth Amendment privilege and informed Congress that she would not answer questions about the dismissal of the U.S. attorneys."

Nick
5.9.2007 11:40am