Monday, March 26, 2007

Taking the Fifth - U.S. Attorney Firings

Monica Goodling, senior counselor to AG Gonzalez, plans to take the 5th Amendment when called to testify by the legislature. (see Wall Street Jrl here, N.Y. Times here).  Her attorney's letter here explains the reasons for this course of conduct.

Now if this had taken place in a corporation that was under investigation, legal counsel for the corporation would be calling the parties in and asking the employees to answer questions. Either internal or external counsel would be investigating to determine if there was wrongdoing involved in the activities.  In all likelihood the individual would have no attorney-client privilege in a world where deferred prosecution agreements allow the corporation to act as mini-prosecutors and turn over evidence of the individuals to the government.  And if the individual refused to speak with counsel - the result would be - you're fired.  Will that happen here? And perhaps, more importantly, should that happen here?

What it is important to remember here is that we are all entitled to exercise constitutional rights, even those who work at the Department of Justice.

(esp)

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“And if the individual refused to speak with counsel - the result would be - you're fired. Will that happen here? And perhaps, more importantly, should that happen here?”

Considering that KPMG (before the 2d Circuit on mandamus right now) was about this very issue and condemned the corporate reaction you described, I think you might be a tad too quick to draw this analogy.

Posted by: S.cotus | Mar 26, 2007 11:09:47 PM

"Interestingly, or perhaps revealingly, at the end of the letter, John Dowd, Goodling's attorney asserts that 'we have advised Ms. Goodling (and she has decided) to invoke her Constitutional right not to answer any questions.'

"This is more than a semantic point. The constitution says nothing about a right not to answer questions. The actual words are that no one 'shall be compelled in any criminal case to be a witness against himself' -- or in the more modern parlance, your right against self-incrimination. . . .

"Certainly there's no 5th amendment privilege against testifying before meanies."

http://www.talkingpointsmemo.com/archives/013272.php

Found at
http://www.washingtonpost.com/wp-dyn/content/linkset/2005/04/11/LI2005041100879.html
where you can also see this...

"Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that's not a valid basis for the privilege. . . .

"[T]he Fifth Amendment issue is whether a person has substantial reason to fear that their truthful testimony will help lead to them being prosecuted. Goodling's letter doesn't give a legally valid reason for that fear, at least as far as I can tell."

Posted by: Anonymous! | Mar 27, 2007 12:08:02 PM

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