Balkinization  

Monday, March 26, 2007

Can you spell "grant of immunity"?

Sandy Levinson

The New York Times has just posted the following:

Justice Official Won’t Testify on Prosecutor Firings
By DAVID STOUT and JIM RUTENBERG

WASHINGTON, March 26 — A lawyer for a Justice Department official involved in the controversial firings of eight United States attorneys said today that his client would not testify on Capitol Hill because she is convinced she would not be treated fairly.

The official, Monica Goodling, the Justice Department’s liaison to the White House, is invoking her Fifth Amendment right against self-incrimination and so will decline to answer “any and all questions regarding the firings,” her lawyer, John M. Dowd, said....

“The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real,” Mr. Dowd said. “One need look no further than the recent circumstances and proceedings involving Lewis Libby.”


This seems the perfect opportunity for the Committee to award Ms. Goodling immunity from prosecution. Indeed, there seems to be no serious argument against such an immunity bath in her case, since there is almost no possibility that she could in fact be held liable for anything she did if her office was indeed simply to serve as a "liaison" to the White House from DOJ. If immunity was good enough for the first Monica, it should be good enough for the second. "Bring her on." Not, of course, that one should behave in any manner at all like the crazed Republican partisans of the Clinton era, all of whom no doubt have been criticized and repudiated by the modern Republican party and its notional leader in the White House (though I confess I can't the provide the hyperlink to any enunciations of that repudication).

As of today, I believe, there are 666 days remaining in the Bush tenure of office. Needless to say, I don't see anything special in this number, but I suspect that George Bush might. Perhaps he believes that Patrick Leahy is Satan incarnate.

Comments:

This seems the perfect opportunity for the Committee to award Ms. Goodling immunity from prosecution.

Ah, but the entire purpose of this witch hunt is to set up perjury traps. All you need is two different memories of a marginally material event and presto, you have a felony crime where before there was a perfectly legal firing.

I do not see how the grant of immunity solves this problem because there is no underlying crime requiring a grant of immunity. Such grants usually do not extend to "perjury" during the immunized testimony, thus the perjury traps remain.
 

Is it possibly the case that Ms. Gooding could refuse to testify even after a grant of immunity on the grounds that she doesn't sufficiently trust Congress to play fair with her testimony?

Would Mr. DePalma (or anyone else who is sympathetic with Ms. Gooding's plight) have been similarly generous with regard to anyone granted immunity during the great Clinton escapade. (Or do we simply say, by stipulation, that Ken Starr was not engaged in a "witch hunt"?)
 

"Bart" DePalma:

Ah, but the entire purpose of this witch hunt is to set up perjury traps...

What's the problem with just telling the truth? You do that, you're home free. After all, we're not asking who, between Dubya and Jeff Gannon/Guckert, was the top in all those White House visits outside of press hours.....

All you need is two different memories of a marginally material event and presto, you have a felony crime where before there was a perfectly legal firing.

Ummm, no. Of course, you're so ignerrent you don't know that.

I do not see how the grant of immunity solves this problem because there is no underlying crime requiring a grant of immunity.

Obviously, her lawyer is afraid of something.

Such grants usually do not extend to "perjury" during the immunized testimony, thus the perjury traps remain.

Quite true; you don't get immunity only to be free to lie your fool head off with impunity. So you then are best advised (by a lawyer) to tell the truth. Keep in mind that to be properly prosecuted for perjury, much less convicted, there needs to be sufficient evidence of guilt for all elements of the crime of perjury to proceed. If you believe your testimony to be true, NP, even if it turns out to be factually false. SO just tell them what you believe to be the truth.

Of course, you'll trot out the Libby case. But, hate to say it, "Bart", there was apparently enought evidence there to show that Libby was lying and knew it, and that his excuses as to why he said what he said were simply completely incredible. It's not a matter of "he said, she said"; it requires quite a bit more than that for a perjury conviction. Too bad that Libby was so stoopid (or so overconfident) as to make Fitzgerald's case for him....

Cheers,
 

Question: My understanding is that her lawyers are saying that she is invoking her fifth because the hearings will be "unfair," not because she may incriminate herself. Is this some new-fangled reading of the constitution, or are they explicitly saying that they are invoking the fifth in bad-faith? Do sanctions exist for bad-faith invocations?
 

Good Government should not be fraught with "perjury traps". "Bart" is not a proponent of good government.
 

Bart Depalma: "I do not see how the grant of immunity solves this problem because there is no underlying crime requiring a grant of immunity"

OK, I'll bite. If there is no underlying crime requiring a grant of immunity in this sordid tale, why does Ms. Goodling feel compelled to take the 5th?

Or are government officials now entitled to refuse to testify whenever they suspect a perjury trap is being laid?

If so, someone should have told Bill Clinton. It would have saved us all a whole lot of trouble.
 

Sandy Levinson said...

Would Mr. DePalma (or anyone else who is sympathetic with Ms. Gooding's plight) have been similarly generous with regard to anyone granted immunity during the great Clinton escapade. (Or do we simply say, by stipulation, that Ken Starr was not engaged in a "witch hunt"?)

As I posted here before, if Mr. Clinton had fessed up to his perjury during the civil deposition, he could have defused the entire matter with a great deal of embarrassment, but no impeachment.

However, Mr. Clinton was (and is) an exceedingly arrogant man and thought he could get away with a second perjury in front of a criminal grand jury. Unfortunately for Clinton, his slightly strange sex partner actually kept a dress covered with his DNA. Even Mr. Clinton could not destroy the credibility of his own DNA with another rerun of the nuts and sluts smear campaign to destroy one of his former playmates.

The Paula Jones case was indeed designed to embarrass Mr. Clinton. However, the way Mr. Clinton attempted to evade the hunt to expose his philandering was a clear felony.

There is a fundamental difference between Clinton's serial perjury derived from calculated lying and the Libby case made up of single differing memory with reporters who admitted that they themselves were not sure about past events.

If Libby could get convicted on the facts of his case, Ms. Goodling has a genuine reason to fear being set up for similar treatment.
 

Billmon said...

OK, I'll bite. If there is no underlying crime requiring a grant of immunity in this sordid tale, why does Ms. Goodling feel compelled to take the 5th?

Under the new Libby standard (which is a stretch of the old Martha Stewart standard), all you need is a differing memory of a tangentially material fact and you are subject to indictment and conviction for a felony calling for prison time. The prosecutor will then claim that you lied in an attempt to avoid liability for an act which is not itself a crime and you can be in deep doo doo with the wrong jury.
 

So Bart,

Let's just dissolve Congress, since by this standard of "I'm afraid that a prosecutor (from my own party) may possibly bring up charges that I lied, and the entire system (up to and including the jury) may fail to give a fair hearing to the perjury charges," it is literally impossible for Congress to ever actually investigate anything - anyone at anytime can claim that defense and go all fifth on Congress, whether or not they actually have a reasonable fear of incriminating themselves. And as you said, immunity is no out!

And since without investigative power, Congress essentially can't function as a legislative body, what choice do we have but to amend the constitution and transfer all of Congress's bailiwick to the President?

Really Bart, your Kung-Fu grows weak. You've been carrying a heavy load; it's time to put down the World, and let another Atlas walk in your stead. As in that Kansas classic: "Put your weary head to rest... Don't you cry no more.."
 

I doubt Congress will grant her immunity, though it might happen. I think the Dems will be thrilled with this development -- it's a political disaster for the Administration.

Remember, this whole issue was just an "overblown personnel matter". Now we have a high-ranking DOJ (!!!!!) official asserting the 5th. The public is very likely to see that as evidence that there really is a fire here. Giving her immunity might dispel that impression. Besides, I think the Dems learned their immunity lesson with Iran-Contra.
 

The Democrats should have learned that it's really stupid to give immunity to big enchiladas like Col. North and Adm. Poindexter, but it always makes sense to give immunity to underlings like Ms. Gooding. I most certainly would not, under any circumstances, offer immunity to Atty. Gen. Albero (Fredo) Gonzales.

I also agree with Mark Field that this is shaping up to be a quite wonderful debacle for the party of law and order, though at some point I'd rather find out what Ms. Gooding has to say. Perhaps the best of all worlds it to hear her plead the 5th Amendment on national television, followed by the grant of immunity.

Yes, I know it raises questions of propriety to bring somebody before Congressin public session when one knows he/she is going to plead the Fifth. In any event, I look forward to hearing Republican defenders of torture and the NCA bloviate about the importance of the 5th Amendment with regard to Ms. Gooding. And, yes, I know that I should be more temperate and less partisan and assume that the the Bush Adminsitration and its congressional minions should be taken seriously when they make arguments based on civil liberties. I just can't help myself, bad character that I am.
 

"Bart" DePalma says:

As I posted here before, if Mr. Clinton had fessed up to his perjury during the civil deposition, he could have defused the entire matter with a great deal of embarrassment, but no impeachment.

Why? As I have explained to "Bart" and "brett" more than once, Clinton didn't commit perjury. He wasn't indicted for such, much less convicted, and he was acquitted of the quasi-legal "perjury" charge in the articles of impeachment (the foaming Republicans dishonestly tried to sweep the "materiality" element under the rug in any discussions of what happened, just as "Bart" does, and the "knowingly" element is also far from an open-and-shut case).

And FWIW, Clinton did "come clean" about his sexual dalliance. Of course, that didn't stop the RW foamers from charging full ahead with the impeachment, did it? But when the facts don't support "Bart"'s RW "spin", he just does what all Republicans seem to do: He just makes sh*te up. Which is what may be a cause for alarm for Dubya-butt-suckers like "Bart" now.....

Cheers,
 

"Bart" DePalma:

However, Mr. Clinton was (and is) an exceedingly arrogant man and thought he could get away with a second perjury in front of a criminal grand jury.

Is this more of that "It depends on what the meaning of 'is' is" crapola, "Bart"? That was actually a more honest answer than simply saying "there is no [sexual relationship]" although that would have been true; he had called off the relationship a while back.

Even the foaming Republicans didn't vote this article of imeachment through. "Bart" ignores that.

You know, "Bart", one of the biggest questions that Clinton's lawyers had in his defence was to ask "What acts are you saying were a crime?" "What statements were perjury" and "what acts specifically were 'obstruction of justice'"? The reason his lawyers had to ask is the the stoopid Republicans refused to say.

Cheers,
 

"Bart" DePalma:

The Paula Jones case was indeed designed to embarrass Mr. Clinton. However, the way Mr. Clinton attempted to evade the hunt to expose his philandering was a clear felony.

Glad you admit the obvious here, "Bart". But it's precisely because it was abusive discovery intended to embarrass Clinton that makes the strongest argument for it's not being a felony. As you should know, you are not permitted to ask people about their prior sexual history except under very limited circumstances, and that is precisely because it is very personal and potentially embarrassing (and prejudicial t any trial), so legislators and courts have wisely ruled such things out under most circumstances. FRE 412-415 doesn't help you, "Bart"m, because they just don't apply.

The Jones lawyers, BTW, were dishonest: They kept saying they were going to show how digging into Clinton's sex life was going lead to admissible evidence, but they never did. Instead, they evaded the judges gag order and immediately leaked the testimony. FWIW, they were also incompetent; they got tossed on an embarrassing SJ after Wright kindly allowed them to amend their pleadings to avoid the even more embarrassing 12(b)(6) motion that Clinton's lawyers initially filed.

Cheers,
 

"Bart" DePalma ignores reality:

Under the new Libby standard (which is a stretch of the old Martha Stewart standard), all you need is a differing memory of a tangentially material fact and you are subject to indictment and conviction for a felony calling for prison time.

Multiple witnesses. Documentary evidence. Four counts. Clearly false statements. Indicted, and found guilty by a unanimous jury.

Yep. There is a difference.

I really don't know how you RW foamers can pretend that Libby wasn't guilty. Even he doesn't deny the factual falsity of his statements. He just says "Uhhhhh ... I forgot." No one believed him.

Cheers,
 

"Bart" DePalma, Esq., licensed attorney in the state of Colorado, doesn't know what the elements of perjury (18 USC § 1621 et.seq) are:

The prosecutor will then claim that you lied in an attempt to avoid liability for an act which is not itself a crime....

At least, I hope he doesn't know. Because if he does know, he's violating MRPC Rule 8.4(c)....

Cheers,
 

Must fix Mark's typo.

Mark,

[I]t's a political disaster for the Administration.


This administration is a disaster in every way, politically and otherwise.


From TPM readers, one, apparently, who is an attorney:
TPM Reader TB ...

A party can request a hearing (in federal or state court) to examine whether the party invoking the Fifth has done so properly. Goodling's attorney's letter does not provide a valid basis for invoking the Fifth. You can't invoke the Fifth to avoid perjury charges (or obstructing justice with the selfsame testimony). (I have the cases here, if you want them.) You can't invoke the Fifth because you think the Committee is on a witch hunt. Etc.
They shouldn't let Goodling get away with this. She either is refusing to providing testimony because she may be testifying about some crime she has previously committed (which is a valid reason for taking the Fifth) or she isn't. If she is, and a Judge so determines, then fine (and goodbye to her attorney's ridiculous GOP talking points), and if she isn't, she should be compelled to testify under subpoena.

The funny thing is she may be obstructing justice (protecting others) by refusing to testify under a bogus claim of needing to take the Fifth.

Talk to some attorneys who work with Congressional committees and see which court they can take this to -- I would suspect the D.C. Circuit.

TPM Reader EJ makes the same point ...

I read the letter from Ms. Goodling's attorney, and it seems rather odd to me. He says that Ms. Goodling will not testify because she fears that, even though telling the truth, she may face perjury charges due to the hostility of Democrats on the Judiciary Committee. The Fifth Amendment, however, has nothing to do with perjury or with feared partisanship. Rather, it states a privilege against self-incriminating testimony. If the Fifth were to be accepted every time a witness feared a perjury indictment, we would have very few witnesses, indeed. I'm far from an expert on this matter, but I wonder if the Fifth has been properly invoked at all here.

 

I think it is a pity to see such an interesting blog colonized by this "Bart" person.
I am not a lawyer but am extremely interested in questions discussed here. However it is tiring to sift through the replies. Of course monopolies are all the thing now.
I suppose the answer will be...Go away.
 

RandomSequence said...

So Bart, Let's just dissolve Congress, since by this standard of "I'm afraid that a prosecutor (from my own party) may possibly bring up charges that I lied...And since without investigative power, Congress essentially can't function as a legislative body, what choice do we have but to amend the constitution and transfer all of Congress's bailiwick to the President?

Hardly.

However, a couple points should be noted....

1) Congressional investigations should be properly limited to areas in which Congress may legislate or criminal activity by the other branches. Neither applies to the President's power to fire his prosecutors unless Congress can show some evidence of a genuine obstruction of justice. There is none here.

Moreover, testimony under oath should be limited to cases where there is evidence of actual criminal wrong doing and not abused to generate "crimes" where there were none before.

2) The standard for perjury is getting pretty darn low in cases based on a scandal like alleged stock manipulation (Stewart) or disclosure of a CIA agent (LIbby) where the prosecutors are under a tremendous amount of pressure to obtain convictions, there is no underlying crime to prosecute and they do not have any evidence on any of the major targets.

The Libby case is a good example of this. Fitzgerald adopted the Dem talking point that the Administration illegally leaked Plame's identity as a covert agent as revenge for a lying op ed Wilson wrote in the NYT as his theory of criminal conduct. However, Fitzgerald discovered within weeks that the actual source for the Novak story was a war opponent from the State Department named Armitage, who accidentally revealed her identity long before the NYT op ed. Under normal circumstances, that would have been the end of the investigation. However, Fitzgerald kept it going for months after the purpose for the investigation had been satisfied. Why, if not to spring perjury traps or to troll around until he could find some unrelated crime to gain a conviction???
 

Moreover, testimony under oath should be limited to cases where there is evidence of actual criminal wrong doing and not abused to generate "crimes" where there were none before.

"Bart" finally arrives at the point where he is perpetually a sad parody of himself.
 

Bart said:

Neither applies to the President's power to fire his prosecutors unless Congress can show some evidence of a genuine obstruction of justice. There is none here."

So your reasoning is: this isn't a proper area for Congress to investigate because they can't show evidence of obstruction, the evidence of which would come as a result of an investigation.

Are you serious? Really?

After that monumental nonsense, I don't have the energy to comment on the rest of the crap you posted.
 

Bart,

Really, as a friend, you need a vacation. Some time to recover from your tireless battles in support of this Administration, and neo-conservatism in general. You've done your part; it is time for a new generation to take on the liberal shibboleth.


Congressional investigations should be properly limited to areas in which Congress may legislate or criminal activity by the other branches. Neither applies to the President's power to fire his prosecutors unless Congress can show some evidence of a genuine obstruction of justice. There is none here.


So Congress couldn't change legislatively the parameters for firing USAs? And they need evidence beyond reasonable cause, unlike for the hoi-polloi? Really, there does come a time to just accept defeat - rest your weary head, my wayward son.

Masquerading as a man with a reason
My charade is the event of the season
And if I claim to be a wise man, well
It surely means that I don't know
...
Carry on, you will always remember
Carry on, nothing equals the splendor
The center lights around your vanity
But surely heaven waits for you

 

And "Bart" DePalma's career as a civil litigator comes to a screeching halt:

Moreover, testimony under oath should be limited to cases where there is evidence of actual criminal wrong doing and not abused to generate "crimes" where there were none before.....

ROFLMAO. Yes, he has become a "sad parody of himself".

Oh, well, there's always those good Chris'shun drunk drivers from Colorado Springs to defend in criminal court to fall back on....

Cheers,
 

"Bart" DePalma:

1) Congressional investigations should be properly limited to areas in which Congress may legislate or criminal activity by the other branches....

.. if Congress is a Democratic Congress that needs to be emasculated and the executive is in the hands of a Republican. If Congress is Republican or the executive is Democratic, this doesn't apply (the IOKIYAR Rule).

This is silly. "Bart" thinks that Congress shouldn't investigate whatever they think needs investigation. Who's going to be the gatekeeper, "Bart"? The courts? The Preznit has "executive privilege" and vague but all-powerful plenary powers, enough to even ignore the express laws passed by Congress, but Congress is constrained to do only the things that "Bart" thinks proper?!?!? As I said, this result "is limited to the present circumstances, for the problem of [Congressional powers under different party control] generally presents many complexities".

Cheers,
 

Arne,

You misunderstand Bart. Bart is a postmodernist. Truth is whatever is political expedient. He's not slow - He's to quick for the rest of us, who still believe in old-fashioned notions like good-faith and objective standards. He's a 21st century man, who has taken the principles of moral relativity to heights that Foucault would find vertiginous.

He's performance art - MOMA should put him on display. Who would have thought - law as a postmodernist discourse undermining the notion of narrative and structure. D'y'all give awards for this kind of thing?
 

RandomSequence said...

Bart: Congressional investigations should be properly limited to areas in which Congress may legislate or criminal activity by the other branches. Neither applies to the President's power to fire his prosecutors unless Congress can show some evidence of a genuine obstruction of justice. There is none here.

So Congress couldn't change legislatively the parameters for firing USAs?


Under what Article I power? These are the President's employees. I cannot see Congress having the power to set rules for the President to fire his employees any more than the President may set the rules for firing congressional employees.
 

Bart,

Then I assume you consider all civil service laws illegitimate?

Secondarily, your terms are incorrect. They are not the Presidents employees - they are employees of the United States, managed by the President. An important distinction.
 

"Bart" DePalma:

[RandomSequence]: So Congress couldn't change legislatively the parameters for firing USAs?

Under what Article I power? These are the President's employees. I cannot see Congress having the power to set rules for the President to fire his employees any more than the President may set the rules for firing congressional employees.


Maxwell's Daemon has taken over the gummint. Hiring but not firing. Funding but not defunding. Declaring war but not undeclaring it. One way street. Good thing too, because with all the added money this is gonna a cost us, we're gonna need a lot of free money, and Maxwell's Daemon is a good engine for perpetual motion machines.... The physics allusions will be lost on the "Bartster", unfortunately.

Cheers,
 

If they are going to do the immunity thing, they still need to haul her in first just to have her plead the 5th for the cameras.
 

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