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Monica Goodling to Testify Next Week:
Details here.
TechieLaw (mail) (www):
Anybody want to take bets on what her testimony will look like?:

(1) Take a bullet for the team.
(2) Kiss-and-tell.
(3) Amnesia (despite immunity).

If you were a 33-year-old lawyer potentially having your name raked through the coals like this, what would you do?
5.16.2007 9:19pm
Steve:
Anyone who asks candidates for AUSA positions if they've ever cheated on their wife clearly doesn't possess a great deal of guile. This should be interesting.
5.16.2007 9:31pm
Felix Sulla (mail):
This calls for a drinking game...

1 (one) drink every time "I do not recall" or their logival equivalents are uttered.

Hmmm, really I think that will do it. That one rule alone should ensure no human being is able to make it all the way through her testimony without passing out, possibly even being admitted to the emergency room.
5.16.2007 9:58pm
Just an Observer:
I promise Goodling's testimony will get more network and cable play than James Comey's did yesterday.

That's a pity, in a way.

Her story, whatever it is, is not unimportant. His story was an order of magnitude larger.
5.16.2007 11:14pm
Randy R. (mail):
I vote that she comes clean and says that she would break any law to defeat Satan.
5.17.2007 12:04am
K:
I have been alone in predicting that she will not testify despite the immunity offer. Not, to me a good move, but stranger things have happened.

Refusal leads to a contempt rap where the only sensible plea is guilty and a hope of a minimum sentence.

Further, she could still be prosecuted if evidence against her develops from another source. I think this unlikely but it is a risk.

At least we will know soon.
5.17.2007 12:24am
TechieLaw (mail) (www):
K --

Assuming she still has her law license, wouldn't she try to avoid contempt of court? Obviously, she could lose her license even with an immunity deal, but would an admitted lawyer dare to outright refuse?

Or, perhaps she's going to give up on this career...
5.17.2007 12:50am
uh_clem (mail):
Refusal leads to a contempt rap where the only sensible plea is guilty and a hope of a minimum sentence.


My undesatanding is that contempt sentences are coercive, not punative. That is, if she is held in contempt she goes to the pokey until she agrees to testify, not for some set amount of time as "punishment". See Judith Miller, for example.

But this is a subpoena from congress, not the courts, so the situation may be different. Perhaps someone here with better legal training than me can elaborate...
5.17.2007 12:53am
K:
This is K:

Two answers. Yes, I think she will give up her law license. They can be recovered. There is a lot of other work, especially for a polarized political figure. I base all these guesses on the blah-blah perjury trap idea that she seems to fear.

Coercive? If my memory is correct there is a maximum of one year. Miller was not in contempt of Congress but obstructing a criminal case.

I'm not sure about one year but that's how memory works.

Goodling knows she can be jerked around once she testifies. The committee can keep calling her back. Or another can. They might decide to run this into summer 2008. I hear there is an election that year.

I think she has to pay her own legal fees also. Wouldn't you prefer to minimize yours? Not very expensive to say 'I won't' and later tell the judge 'yes, I said I won't' over in federal court.

A question? Can a President pardon for contempt of court? Of Congress? Sounds like a separation of powers can-of-worms. But I think the answer is yes.
5.17.2007 2:26am
Bill Poser (mail) (www):
As I understand it, imprisonment for contempt is a coercive measure, not a penalty for a crime. Since there is no crime, no pardon is possible. Is there precedent on this?
5.17.2007 3:46am
Steve Lubet (mail):
Even if a pardon is possible, it wouldn't make much of a difference so long as Democrats hold the majority in one house -- they could always re-subpoena her and then hold her in contempt again if she refuses to testify.
5.17.2007 9:35am
Justin (mail):
There is both civil and criminal contempt. One can presumably be pardoned for the latter, which requires all the trappings of constitutional rights.
5.17.2007 9:45am
ralph:
Advice to the next president: Do not allow the government to employ anyone named Monica...
5.17.2007 9:46am
Steve:
Any theory that postulates that Monica Goodling is important enough to receive a presidential pardon, but not important enough to have someone else cover her legal fees, hasn't really been thought through fully.
5.17.2007 10:20am
byomtov (mail):
I think Goodling will testify fully and not dodge questions. Isn't that what her lawyer should be telling her to do? (IANAL, but that seems like clearcut advice to me. If lawyers here disagree I'd be interested to hear what advice they would give.)

The perjury trap business is nonsense. She's not going to risk disbarment, jail, etc., all the more so since it is possible that she would accomplish little by taking the risk.
5.17.2007 10:46am
MLS (mail):
I agree that she has no real option at this point other than to testify. She will have to answer all relevant questions unless the Justice Department instructs her not to answer some on grounds of executive privilege (or some variant thereof). Under the circumstances, I think this is unlikely. Her only real jeopardy is if she were to lie under oath.

If she were to refuse to testify now, the Senate most likely would vote to hold her in criminal contempt under 2 USC 194, which would be punative, not coercive. It could also bring a civil action to enforce the subpoena (seeking a declaration by the court that she must comply).
5.17.2007 11:34am
arthur (mail):
Taking into account both her role in the scandal and the way that elderly Congressmen question young women of a certain appearance, Monica Goodling will be this decade's Fawn Hall. Although her hair isn't quite so fabulous.
5.17.2007 11:35am
Zathras (mail):
She won't just be Fawn Hall; she'll be a combination of the 80s Fawn Hall and the 90s Susan McDougall if she refuses to testify.
5.17.2007 11:55am
Felix Sulla (mail):

[T]he way that elderly Congressmen question young women of a certain appearance[.]
I think it's probably more of a universal modus operandi for elderly gentlemen questioning attractive young women. "Poor dear, tell us what the bad men made you do."

That being said, even adjusting for hairstyle, changes in style and taste over the last twenty years, inflation, and so on...Goodling is no Fawn Hall. ;-)
5.17.2007 11:56am
Oren (mail):
The US Congress does have 2 jail cells and the Sargeant of Arms in the both the House and Senate have exclusive jurisdiction. Just a thought . . .
5.17.2007 12:01pm
Mary Katherine Day-Petrano (mail):
"I vote that she comes clean and says that she would break any law to defeat Satan."

No doubt. She comes from Pat Robertson's law school. (I went to a more mainstream Catholic Jesuit law school, myself, one, however, steeped in tradition).

On another note, as I recall it was MAY 1973 when John Dean, another young lawyer, came clean and turned the tide on Nixon and the Cancer inthe WH ... which has metasticized.
5.17.2007 12:09pm
Mary Katherine Day-Petrano (mail):
"Two answers. Yes, I think she will give up her law license. They can be recovered. There is a lot of other work, especially for a polarized political figure. I base all these guesses on the blah-blah perjury trap idea that she seems to fear."

No need to worry about any "perjury trap," since alls she has to do is come on down to the M.D. Fla., Tampa Div., and she will be able to keep her law license even WITH perjury, because here there is NO PENALTY for perjury and perjurers, who still walk free and get paid fees for their handiwork as well. See, Judge Whittemore, Vessel Mistress, Theron Hutto, M.D. Fla. PACER. 11th Circuit, Judge Carnes. No remedy. The Florida Bar, no discipline. Admitted perjury in open court, perjurer says atty suborned.
5.17.2007 12:16pm
Mary Katherine Day-Petrano (mail):
Oh, yes, I forgot to mention, what brought all this one appears to be my complaints that disabled voters were beign disenfranchised from the Presidential and Congressional vote in Florida in 2000 and 2004 to President Bush's Florida election lawyer, Barry Richards, Greenberg Traurig, P.A. Potentially thousands of votes that might have gone Democratic.
5.17.2007 12:20pm
Mary Katherine Day-Petrano (mail):
"brought all this one"=brought all this on
5.17.2007 12:21pm
Daniel Chapman (mail):
Huh? Does anyone else understand how the 2000 election just entered the conversation?
5.17.2007 12:32pm
Felix Sulla (mail):
It's VC comment pages, Daniel. I am amazed it stayed close to topic as long as it did. ;-)
5.17.2007 12:50pm
ObeliskToucher:
Given the danger of falling into a perjury trap, I'd be tempted to go into something like without *any* preparation (no review of notes, documents, etc) — and make that absolutely clear to the committee. Unless I had an absolutely solid-gold memory regarding a specific event, I would respond "I simply don't recall the details, Congressman" — repeatedly and with a clear conscience.

I imagine that this is probably not a natural instinct for a lawyer... my question is whether there would be anything they could do (apart from scoff, which they'll do anyway) in response? They obviously can't "prove" that I have a recollection *today* of those events...
5.17.2007 1:33pm
Per Son:
Daniel:

When Mary Katherine Day-Petrano starts it will always end with Florida, the ADA, and the 2000 election.

I mean a Conspirator can make a thread about Pluto being downgraded from a planet to a planetoid and she will bring up those subjects.
5.17.2007 1:34pm
uh clem (mail):
Unless I had an absolutely solid-gold memory regarding a specific event, I would respond "I simply don't recall the details, Congressman" — repeatedly and with a clear conscience.

Saying you don't remember when you do remember is just as much of a lie as any other. Darned hard to prove, but perjury nonetheless.
5.17.2007 1:56pm
Felix Sulla (mail):

Unless I had an absolutely solid-gold memory regarding a specific event, I would respond "I simply don't recall the details, Congressman" — repeatedly and with a clear conscience.
In addition to agreeing with uh clem, I also note that no one need have a "solid-gold" memory to be able to testify truthfully about what one does remember, and that not having an eidetic memory as to things you are asked about is hardly grounds for declining to comment at all. She may try it...she may even get away with it...but with a clear conscience? Not so much, unless her only ethical/moral star is advancing the Bush agenda to the exclusion of absolutely everything else. (Which of course may be the case.)

Still, it'll make the Monica Goodling drinking game I described above a whole lot more fun. ;-)
5.17.2007 2:06pm
Zathras (mail):
ObeliskToucher: ... Unless I had an absolutely solid-gold memory regarding a specific event, I would respond "I simply don't recall the details, Congressman"

This reminds me of a line from some movie I can't recall. A woman is being asked questions, to which she replied.
"I do not recall."
"A lie?" the investigator asked.
"A choice."
5.17.2007 2:26pm
Felix Sulla (mail):
Zathras: Star Trek VI. Leonard Nimony and Kim Cattrall.

*hangs head in shame for knowing that right off the top of his head*
5.17.2007 2:58pm
Anderson (mail) (www):
Alberto Gonzales ... closet Trekkie.
5.17.2007 3:06pm
ObeliskToucher:
uh clem &Felix: You misunderstood what I said. When she actually remembers something, answer the questions. My point was that I wouldn't attempt to "re-construct" my recollection by reviewing notes, etc., prior to the hearing. Presuming honesty, it seems as though that reconstructed recollection is what gets people into trouble. Better to go into the hearing with what you can actually remember -- and be unafraid to tell them when you can't.
5.17.2007 3:06pm
Felix Sulla (mail):
ObeliskToucher: Fair enough, I think I understand what you meant now.
5.17.2007 3:10pm
uh clem (mail):
Agreed, Fair enough. Sorry to take your comment out of context.

Whether what you suggest is the best strategy for someone in her situation is another thing. I doubt you'd find many attorneys giving that sort of advice to a client in her position. I know I wouldn't want to go into that lion's den cold.

As for the danger of a perjury trap, the conventional wisdom speculation is that she's already immeshed herself in one by being less than forthcoming in previous testimony, hence the (dubious) 5th amendment plea.
5.17.2007 4:05pm
K:
K here again: Oblisk and uh Clem make some good points about reviewing before testimony.

It seems to me that one of Goodling's (or any another witness) problems in a hearing is that tens of thousands or papers and communications will be examined before the hearings end. Some may well be unthought of as of today. And who knows how much testimony will follow from others concerned with their own situation.

Does she have the resources to examine all of that, even if she can get it? No, she doesn't. (of course she can't hear future testimony yet). I assume she must rely upon memory, personal papers, and a limited subset of her work papers.

Considering the above, she might well be better off to train on a strict diet of drugs and drinks. Read nothing, think naught, and say - quite truthfully- it so often seems unclear and unsure to me (and next week seems bad too.)

The Packwood case turned heavily on his error in mentioning his diaries. They could then be subpeoned. Goodlings personal papers might be interesting. She should never mention a one.

I didn't know she had any previous testimony. That certainly increase her problem and narrows her options.

The perjury trap idea isn't nonsense if she believes it. My advice would be to testify, what she may do may be otherwise. Nor do I know much about legal fees linked to pardons. Maybe no one actually pays in D.C.

OK. The immunity agreement is made. I am unfamiliar with them. Does it bind her - in other words, is she a party to the ageement or merely the subject of it?
5.17.2007 5:16pm
Christopher Cooke (mail):
My prediction is that Goodling will testify, because (1) that may make any potential criminal prosecution of her very difficult (see Poindexter and North cases); (2) she probably does not need to worry about any such case anyway and (3) this will get Congress off her back (so to speak) and let her get on with her life as one of the more famous alums of Regent University School of Law.

I am not sure I agree with others who say that they would not refresh her recollection before she testifies. I think witnesses do better when they are well-prepared, even when the witness does not want to be helpful. So, I would go over all emails, etc. with her before she appears before Congress, to make sure her testimony is bullet proof.
5.17.2007 6:21pm