Tuesday, March 27, 2007

OK, Now I'm Suspicious

Monica Goodling, senior counselor to Attorney General Alberto Gonzales, will refuse to testify before Congress about the firing of U.S. Attorneys. She's going to invoke her Fifth Amendment privilege against self-incrimination. She and her lawyers have prepared an affidavit and an explanation that claims that invocation of the privilege is appropriate, because Democrats in the Senate have already concluded that wrongdoing occurred in the U.S. Attorneys flap.

Hmm. Goodling and her counsel have cited a case, Ohio v. Reiner, 532 U.S. 17 (2001), which they claim supports her invocation of the Fifth Amendment privilege in this situation. In that case, a man was being prosecuted for manslaughter in connection with the death of his son, who had died of "shaken baby" syndrome. He claimed it was the babysitter who did it, and the babysitter refused to testify, even though she claimed complete innocence. The Supreme Court upheld the invocation of the privilege by someone claiming innocence, because part of the purpose of the privilege, the Court said, is to protect innocent people who "otherwise might be ensnared by ambiguous circumstances."

So I guess there is some basis for claiming the privilege here. Still, the case seems somewhat different. According to her counsel's own letter, one fear that Goodling has is that she might get prosecuted for perjury after testifying. And to be fair, in the current polarized political world, I can certainly understand the desire of a political official not to appear before a hostile Congress under oath. But still, I don't think the purpose of the privilege against self-incrimination is to protect people from having to testify truthfully. "I can't testify because I might lie" is not a very appetizing claim.

Even more important, the invocation of the privilege is highly suspicious. As I've said all along, the whole key to the U.S. Attorney "scandal" is why the fired U.S. Attorneys were fired. Even showing that the firings were "political" is not necessarily scandalous because some "political" reasons -- e.g., if the U.S. weren't fully on board with the administrations enforcement priorities -- would be perfectly appropriate reasons for the firing. Only if the reasons were "political" in a bad sense -- e.g., if the U.S. Attorneys were fired because they refused to stir up trouble for Democrats without regard to the evidence -- would there be a real scandal.

So what we need is evidence of why the firings really took place. And one probative piece of evidence is all the changes and contradictions in the administration's story. If the firings were done for a perfectly legitimate reason, why can't the administration just state that reason and be proud of it? Why does the White House keep changing its story? Did Attorney General Gonzales participate in the firing discussions, or didn't he? The changes and contradictions are suspicious.

Invocation of the Fifth Amendment is all of a piece with these suspicious circumstances. Outside the actual criminal contest, when a witness takes the Fifth, one is allowed to draw an adverse inference. If Goodling has to take the Fifth rather than testify, that raises the likelihood that the U.S. Attorneys were fired for some shameful reason. Can't the White House see that this kind of thing is just adding to its self-inflicted wounds on the U.S. Attorney issue?

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