Taking the Fifth

There are times when I wished I’d gone to law school. That way I might better understand the nuances of what it means when Monica Goodling, the Justice Department’s White House liaison, has her lawyer, John M. Dowd, tell the Senate Judiciary Committe she plans to take the Fifth Amendment when she’s called before them to testify in the matter of the U.S. attorney purge.

On its face, the Fifth Amendment protects you from self-incrimination; you can’t be forced to testify against yourself. But as several readers of TPM note, that doesn’t mean you don’t have to testify if you don’t like the people who will be asking the questions, as Ms. Goodling’s lawyer claims, or you know someone who might have committed perjury in the matter. It also doesn’t mean you can’t answer “any questions,” as Mr. Dowd states in his letter; you just don’t have to answer the questions that could directly incriminate you.

Taking the Fifth has a lot of baggage that goes along with it. If you’re old enough to remember the HUAC hearings and Sen. Joseph McCarthy’s witch hunt in the 1950’s, a lot of people who were hauled up in front of the committee took the Fifth to protect their names and reputations, much to the derision of the investigators; they labeled such witnesses “Fifth Amendment Communists” and darkly implied that they were hiding the truth from the committee and the public when all they were doing — rightly or wrongly — was using the Constitutional shield to protect their livelihoods and their reputation from what they thought was a grandstanding committee more interested in the limelight then in actually finding out the truth. And that may be at the heart of Ms. Goodling’s motives for taking the Fifth; she and her attorneys are indulging in a bit of theatrics here in order to paint the hearing as just a witch hunt by the Democrats who are out to get back at the White House and the Department of Justice now that they are in charge.

Well, I do know something about drama, and it’s a sure bet that that is what Ms. Goodling is relying on to draw the attention to her case with her refusal to testify and generate some sympathy among the White House defenders. But it also makes things a bit uncomfortable for them because if Ms. Goodling is taking the Fifth, the implication is that she has done something illegal, and the entire White House line all along is that the dismissals of the attorneys were all above board and perfectly legal; they were just mishandled. So where, in the whole scheme of things, does Ms. Goodling step into the realm of legal jeopardy? Perhaps, as Josh Marshall says, “she’s afraid of indictment for perjury because she has to go up to Congress and testify under oath before the White House has decided what its story is.”

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