(Love this shot. Too funny. Via Saffanna.)
Monica Goodling's lawyer sent a response letter to John Conyers and the House Judiciary Committee yesterday, restating his client's intention to assert her Fifth Amendment privilege to stay altogether silent. The great folks at TPM Muckraker have uploaded the document for you to view, and I'd like folks — especially those who practice in the DC Bar — to take a peek at page 3 for me, wherein the attorney says that calling Ms. Goodling would be in violation of the D.C. Legal Ethics Opinion No. 31 (March 29, 1971).
Out of curiosity, I went to the DC Bar website to take a gander at this Legal Ethics Opinion No. 31, and found this:
Opinions with numbers lower than 210 were issued interpreting the Code of Professional Responsibility. Some of those opinions remain in effect under the Rules of Professional Conduct and are available below.
Earlier opinions listed below may be obtained from the D.C. Bar’s Legal Ethics Office….
By my reading, the opinions that "remain in effect" are the ones which are available via a link on the site — thereby, those which are not available via a direct link and have to be obtained by special request from the Bar are, arguably, no longer remaining in full force and effect. (Is that how you guys read this? Because it seems pretty straightforward to me.) I've e-mailed the DC Bar Association to get an answer as to whether this is a valid Legal Ethics Opinion any longer — because Opinion No. 31 is NOT available as one of the designated "[s]ome of these opinions remain in effect" because it is decidedly not "available below." But until I receive a response from the DC Bar Association to my query, I thought I would ask if any of our DC Bar readers might know the answer to this.
If it is no longer in full force and effect, it is not precedential. It may be persuasive, as a remnant of the Watergate era — and it certainly serves as a reference note for the media PR machine to hit, just as the assertion of former Senator Joe McCarthy's name carries a certain cachet in this letter's context, but it would not carry the weight of a valid precedent if it has been invalidated or superceded. (If Dan Eggen of the WaPo is any indication, there is some precedent for inflammatory PR bait taking in the media already on the McCarthy note.)
But a public media campaign and actual legal applicability are not one and the same, and a lawyer who is having to fight for his client on a PR front as well as placing legal precedent in perspective often fights themselves as much as their legal adversary. And I am wondering whether this may not have been an inadvertent overreach, bluster, or simply a ballsy attempt at a high stakes bluff — whether Goodling's attorney is gambling the Democrats will not have the nerve to call his bluff outright with a subpoena and a contempt citation for his client if he persists in a broad blanket claim on her behalf.
In doing a bit of additional research on the assertion of the 5th Amendment privilege, I found this summary on FindLaw particularly illuminating in its emphasis:
The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded, 199 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace. 200 (emphasis mine)
Findlaw's annotation cites two cases: Brown v. Walker and Ullman v. United States, in support of this. It certainly is Ms. Goodling's legal right to validly assert her 5th Amendment privilege — and she should be allowed to assert it if she, indeed, has valid grounds to do so. But it is not, by any means, a blanket right of assertion without some particularity and justification therefor. And yet, the letter from her counsel appears to do just that. Is it a bluff that he is gambling neither the House nor Senate will call? Or a public bit of posturing in order to obtain a better behind-the-scenes negotiating stance on behalf of his client for use and/or other limited immunity? (And truly, what would you expect from a protege of Barbara Comstock except a public relations strategy? Because, golly, look how well that plan worked out for Scooter…)
This and many, many more questions are raised…but not yet answered. Which just keeps this whole mess in the limelight another few days. Not an enviable position for Ms. Goodling or her counsel, and certainly not the best outcome at the moment for the DOJ, the AG preparing for his day in the witness chair or for the White House. Which makes me ask myself exactly what Ms. Goodling's counsel is trying to achieve with all of this — unless, of course, this simply is a case of protecting his client's interests and nothing else. But with this White House and this particular crowd, you just never know, do you? And, frankly, that is a big part of the problem — who could possibly trust these people to be honest with us…or with themselves?
More from the WaPo; TPM Muckraker; the ABA (regarding potential exposure to civil liability by taking the 5th in a criminal context in some cases, very intriguing analysis); Time magazine; and NPR. And in the karma category, this is a hoot.
Related posts:
- SCOTUS: Right Wing Objections to Sotomayor in a Nutshell
- Addington’s Direct Involvement in the Torture Memos
- Sen. Sheldon Whitehouse: Talk Shows Shouldn’t Make Prosecutorial Decisions
- Holder Refuses to Stand by Statements Saying Violating FISA Breaks the Law
- Bank of America Finally Clues In: “Lawyer Made Us Do It” Doesn’t Work
Spotlight
Support this site!
Subscribe to the newsletter
Advertise on Firedoglake
Send
us your tips
Make us your homepage
About Firedoglake
Advanced search
Monica is just taking the Fifth, just like Jesus.
Right?
This is better for posts yesterday, but Newt has himself a new Pantsuit
Attaturk at 0 — I’m afraid to even click the link. Please tell me that Newt is, indeed, wearing the pants? *g*
Conyers! Waxman!!
Accountability!!!
When Justice Dpt. officials testify that they “do not recall” or “do not remember,” put the emphasis on the word “do.”
The follow-up question must be, “But CAN you recall?”
Clearly, we know they are not recalling. That’s a choice, not an ability.
“The whole truth” has no meaning to them; it’s word play, and each time they say “do not,” they mean “at this moment I am not recalling/bringing to memory to share.”
I love reading the lawyers opinions here as most of you write in common language to explain the principles discussed…it is quite educational
on a similar note, and I’ve emailed jane concerning this;
abu torture has undergoing intensive “preperation” for his hearings in front of waxman.
this means he has interogators trying to pose questions from every angle they can think of
wazman I’m sure is not holding similar “mock” hearings and abu torture has done well to prepare.
I believe we should prepare for waxman a few questions that abu torture would not have concidered and we should compile these questions and have them submitted by jane or christy to the waxman office
now, I don’t think we should make our suggestions public here in comments since the wing nuts now read the lake
I think we should have some kind of campaign, send these questions off to one of the email accounts and let the keepers of the lake edit the best questions and submit for waxman’s consideration
whatch think christy?
I’d bet that one or more of Henry’s committee staff are already on this.
P J Evans @ 6
ya, but we are “the power of the internet” after all, it was “we the interneters” that uncovered the emails in record time
we will surely come up with questions that should be asked but nobody considered
Hey, Christy. Nice post!
I’m finally reading a post early enough to actually comment on one (instead of being comment #200 on three threads ago).
OT, have you heard any whispers as to when is Sen. Rockerfeller going to release the missing part 2 of the Senate Intelligence report?
Ooopsie, with the three o’s, is the name of my car. It has to do with silent acceleration. Can I call that a surge?
Hey Christy, the Queen said to say hey to you and that she loves the blog.
Boy are you on target! Brilliantly constructed. However, There is a possible growing problem here in river city. When the folks that are supposed to be a member of the good folks group stoops to the level of the garbage that is in charge, then we all are in trouble.
Huffington- this am- just below the picture, a posting stating that monica is talking out.
Go take the link and then you will see what I am talking about. Not A Single Word From Monica. Not One!
billjpa
1971 predates Watergate, so whatever that rule is, it wasn’t put in to prevent those types of transgressions.
IANAL
There is obviously already a PR campaign in the press to make the Dems look like they are over-reaching in their pursuit of infamy in the bush “badministration.”
Thus I have been wondering if the monica fifthling affair is trying to make use of this ongoing effort to paint the Dems as over-reaching.
So, by presenting her as a victim – now I’m on my territory – is this an attempt to “manipulate” both the committees and the public into backing off – from what is being cast as the public pillorying of monica?
If so it is what my husband terms “the tyranny of the weak.”
And, not on Goodling, but on the recess appointments, I was thinking (1) that we shouldn’t de-fund the embassy, but the official residence. (People who buy appointments ought to be able to afford a place to live.) and
(2) we need to amend that clause to add something like this:
(a) a recess appointment shall end when Congress returns from recess, or at the end of six months, whichever occurs first;
(b) no one whose nomination for a position has been rejected by a vote of the Senate, or whose nomination for a position has been withdrawn before such a vote can occur, shall be eligible for a recess appointment to that same position.
(I’d like to make it ‘for any appointment’ in that second section, but that’s maybe a bit harsh.)
billjpa at 10 — Absolutely no idea what you are talking about, but I’ll take a peek. If you have an issue with something at HuffPo, though, shouldn’t you contact the particular author with whom you are having the problem?
I was under the impression that the reason she was giving for taking the fifth was that Congress had already made its mind up, and that this was a political show trial. I can’t imagine that this assertion could be grounds for anything, but that’s the impression I thought they were trying to put out.
Is it true or not that by Goodling taking the fifth that it implies there was criminal activity. (I know that even without her, it seems like that, but, I’m just trying to read through the spin here).
egregious at 9 — You are cracking me up. Tell Her Majesty that I have a personal affinity for her corgis and afternoon tea. *g*
coyoteville at 8 — No idea (wish I did, because I’d sure love to see that report, too).
Twisted Martini @
11
Probably more likely to facilitate them, though Nixon, try though he did (anyone remember Judge Carswell?), wasn’t able to turn the judicial branch into another arm of the Republican National Committee, at least not to the extent that Bush has done. (Though again, not for lack of trying. If he’d had a Republican Congress, there’s no telling what he’d have done.)
Christy Hardin Smith @
2
I cut him off before his hips.
JUSTICE!
and coffee!
Morning OC — I’ll take some of that coffee…
Christy Hardin Smith @ 21
hold out your cup – nice hot and strong.
Christy -
How does that ethics opinion apply if Monica Goodling isn’t a member of the D.C. Bar? How does it apply to any inquiry conducted by Congress?
Georgesimian @ 15
IANAL, but if the Fifth Amendment was intended to protect individuals from self-incrimination (and not protection from infamy), one might logically deduce that there is an underlying problem that would be uncovered through self-incrimination.
Why’s she still on the payroll if she implying an underlying problem? I’d like to fire her, since she’s either going to cooperate with a government investigation, being a government employee, or she’s done something in the course of her duties for which she refuses to testify, suggesting an inability to faithfully execute her functions as a government employee.
Why are we rewarding this insubordinate behavior with paid time off?
I think it all comes down to the very last line
“Harm to rep. or exposure to infamy or disgrace”
It makes it so obvious, try to cover your ass with a silly argument, give in, perjure yourself or be truthful, go to jail or be set free. She’s trying to show the bushies that she tried to fight, so don’t rule me our for a job when this is over. IANAL but I do have extensive DBT (Diabolical Behavior Training)
Stephen at 23 — It wouldn’t apply to Monica — it would apply to those lawyers who are working for the Committees who are licensed in DC. The Ethics Opinion applies to conduct by those who work within the DC Bar. Goodling’s attorney is trying to shape how they will act by throwing out a constraint — except that constraint may be an invalid one that only points to conduct that is no longer restricted. No response from the DC Bar, btw — at least, not yet. I e-mailed on this yesterday.
It seems to me that her lawyers are doing everything they can to try to keep Goodling from having to actually show up and invoke her Fifth Amendment rights. My take on this is a bit different from the she-just-doesn’t-want-to-embarass-her-boss camp. I think she’s guilty as hell of asking for loyalty oaths from AUSAs, which is quite illegal. If she admits it, she’s toast. If she denies it, it’s perjury. That’s a pretty good reason to invoke your Fifth Amendment rights.
What I don’t get is: 1. Who’s paying her legal bills? Unless she’s independently wealthy, she’d be hard-pressed to afford a phone call with her current legal team, much less the take-no-prisoners defense she’s getting now. 2. Why is she still on the payroll at DOJ? It can’t be simply that she’s a good Bushie. Kyle Sampson got the boot, and they don’t get much more loyal than him.
The obvious answer to both questions is that someone with deep pockets and a lot of power is protecting her. But I don’t think they’d protect her if it was just her ass on the line. That means that she’s not only guilty, but she also implicates someone else. Did someone order her to extract loyalty oaths from the AUSAs?
great post here, christy!
i was always taught that one had to
be directly asked a question (i.e., in
custodial interrogation), before the
privilege, and protections, of the fifth
became fully applicable.
while it seems these rules are more fluid
where the congress proposes to ask questions
(not uniformed law enforcement officers), it
still strikes me that conyers is right in
saying that the fifth is testimonial in
nature, and thus cannot be invoked as a
“blanket avoidance” of all questions, even
before those questions are framed. . .
i think this of yours is particularly spot-on.
i think john m. dowd, and jeffrey m. king
are angling to put ms. goodling in the
very best position to offer her sworn
testimony in return for blanket immunity.
but, when all the window-dressing is
removed from their three page letter,
we see these akin gump partners are likening
ms. goodling to several of the watergate
conspirators, at least insofar as some of
those conspirators were not required
to appear before sen. sam ervin in order to
assert their fifth amendment privileges.
i’m not sure i’d press that comparison. . .
unless i intended to become one
of the conspirators who ultimately testified
in return for immunity. . .
and so — if rep. conyers goes along with
dowd’s suggestions — i think it fair to
infer that discussions are underway for
ms. monica “take five for freedom” goodling’s
testimony, in return for immunity. . .
the similarities to the events
leading up to john dean’s testimony before
sen. sam ervin are rather eerie, no?
Attaturk @ 19
Liar. And I mean that in the nicest way.
You really cut him off at the knees.
;-)
yesterday I had a couple 3rd graders think that running and pushing each other over getting to sit at one computer was a good idea. this kind of action earns a child a few minutes sitting on the rug, but one little girl decided to make her situation much worse (when requested to sit back down) by heaving a huge sigh, rolling her eyes and arguing with me…
reminded me of the Bush administration… bad to worse, in the blink of an eye, all caused by a bad attitude.
I’m interested in the type of leave Ms. Goodie is certifying she is taking while defying Congress. If she is a federal civil servant, it could be annual, sick, and/or leave without pay, all of which raise questions in her case. It’s unlikely she accrued enough annual leave for her lengthy absence and no one has indicated she is ill. Leave without pay would require justification so what might that be?
OK, I just read the WaPo article. Goodlings attorneys are saying that when the Dems say that when she takes the fifth it implies there was a crime, that this is like McCarthy and his Fifth Amendment Communists.
I guess there may be some sense in that, BUT, if those accused in the Communist hearings admitted to being Communists, wouldn’t that have been a crime according the McCarthy? It would certainly have meant, as has been stated here, that some serious damage would have been done to their lives. They took the fifth as a sort of protest, didn’t they? And it didn’t help their cause by any means.
OldCoastie @ 30
Did you make her do push-ups?
Frank P- Great point, I always think of organized crime when dealing w/ this bunch. The mob will pay your legal fees if they know you won’t squeal, plus I think shrub is just itching for a fight.
uh, no Twisted… I made her sit by the door (instead of the rug)… where you gotta sit when you are in Really Big Trouble… has the illusion of being somehow worse…
;-)
kenneth b. mehlman recently (march 1, 2007)
rejoined akin gump as a senior partner. dowd is an
akin gump partner, as is king. . .
yes — before you ask — the former
chairman of the r.n.c. mehlman.
just follow the dots. . .
Over at TPM there have been a couple of comments about who is funding Mini Ka (Python-Kipling), without any conjectured answer, the point being made that receiving a gift for the fees, she being a Federal employee, would be a crime. So!! Is Min Ka the daughter of a plutocrat? Is she the live-in of one? Are there any cool investigators out there will to do the work for us all and love?
Another interesting point made, which I had thought of for myself to ask, but got beaten to it, is that she is pleading the Fifth, whether correctly or erroneously, because she does not wish to incriminate herself in a crime: IE, she acknowledges that a crime has been committed, surely? In which case how is it rthat she is still employed by the DOJ of the United States?
No one answered that one on TPM either……. people seem clever over here, so are there answers?
I think PJ Evans @ 13 is on the money too. Well we know Bush has no idea what “amoral” means, but the contempt for the American people he displays is breathtaking.
This is all as brilliant as usual CHS, and I look forward to following for answers off and on all day.
CHS – EXCELLENT POST!
I am soooooo glad you are on this.
I read the letter from Dowd late yesterday afternoon. IANAL but I have been and currently am exposed to them on a daily basis. When I was reading the letter, something happened in
my gut, like a sick weakening feeling. Something just didn’t feel right. I often refer
to this as intuition (women’s, most often).
My mom used to always say, “If it doesn’t feel right in your gut, it probably isn’t.”
Thanks again for exposing some light on this. I don’t trust ‘em. Please keep peeling it away!
The coffee here at the lake rocks!!!!!
Here’s a question I have yet to see answered.
On page 3 of Dowd’s letter why does he refer to her Fifth and Sixth Amendment rights? He does it twice.
The Sixth Amendment refers to a right to a speedy trial and a lawyer. What is the purpose of referring to it?
Nice post, Christy!
Hysterical, bluffing, huffery puffery v. calm, reasoned, legal research. I know where I’m placing my bets.
billjpa @ 10
Dan Eggen, the author of that WaPo article, really should read the Fifth Amendment to see what it actually says. Maybe then he could point out that Monica’s attorneys are full of shit.
Georgesimian @ 32:
the whole mccarthy metaphor is
a cannard — it simply reverses the
ACTUAL historical roles. . .
that is, if anyone is mccarthy,
it is doan, (and goodling?), and anyone
else who made political speeches, or
presentations, in front of career
federal employees — in violation of
the hatch act. . .
no, goodling is not a mcarthy-ista-target.
Corrinne at 39 — He’s referring to that because he is inferring that the committee is trying to twist Monica’s arm to ignore the advice of her counsel — to come between client and counsel. I think it is an inaccurate assertion, especially given the fact that Ms. Goodling is a lawyer working at the DoJ and ought to know, full well, what weight to give advice of counsel, but maybe that’s just me.
nolo at 28 — That is some great stuff. Thanks much.
corinne says
April 5th, 2007 at 6:02 am
Here’s a question I have yet to see answered.
On page 3 of Dowd’s letter why does he refer to her Fifth and Sixth Amendment rights? He does it twice.
The Sixth Amendment refers to a right to a speedy trial and a lawyer. What is the purpose of referring to it?
because — the argument goes — not allowing
ms. goodling to follow her counsel’s advice
(and pull a no-show before the congress),
deprives her of her SIXTH amendment right to
effective counsel in a potentially-criminal
setting. . .
Frank at 27 — I’ve been wondering that myself. And when you add in the fact that Kenny Boy Mehlman works there now, my “something’s not right” antennae are buzzing. Yes, THAT Mehlman, as in formerly Rove’s proxy at the RNC.
It may not be appropriate fodder for discovery but I’m wondering how Ms. Goodling is affording Dowd, who appears, at least, to be a pre-eminent white collar criminal attorney. Either she has great wealth, the lawyer is charging public defender wages or she’s accepting a gift. As a government worker who is still on the roll, such a gift may not be legal and/or ethical. Idle speculation on my part…and maybe there’s no appropriate way of finding out…still, enquiring minds want to know who’s funding this.
my pleasure!
great work, as always. . .
nolo @ 45
ding!
Rayne @ 29
O/T Rayne, regarding the Chinese wheat gluten site, my friend says there is no mention of rat poison. Don’t know if anything got lost in translation though. I explained melamine was rat poison, but I hear it can be used in fertilizer too and forgot to mention that. Like I said Chinese and Anglo technical terms don’t always translate well and neither my friend or I are science oriented people.
Also the site does not list any Western companies as customers.
nolo @ 42
Obviously when someone compares themselves in this situation to victims of the McCarthy hearings, they are spinning and lying, and sounding more like criminals. I’m just trying to figure out what they’re really saying.
mayan @ 47
You mean, something unethical is going on in this DOJ? No way!
Frank Probst @ 27
You got it, Toyota. This is exactly the case. She’s the smoking gun, and Leahy and Conyers know it. She’ll show up, under subpoena.
Frank Probst @
27
That would mean, of course, that there would have been a conspiracy. What happens if that someone is in the White House or Karl’s shop? Someone with access to pots of money and an interest that explosive must be paying Ms. Goodling’s gargantuan legal bills. As many have said, while she’s still employed at DOJ, accepting money for her defense or free legal advice would be a No No.
Nixon must be laughing.
See, also, the Daily Kos on Fred Hiatt’s explosive allegations about Ms. Pelosi.
OT – 4 Britons dead in Iraq; U.S. copter down
i hear you — i am just infuriated
with the “black is white” agit-prop
nature of their false analogy. . .
Good Morning Christy and Firedogs
you don’t have to read the link, just wanted everyone to see where this linked discussion is going on
kinda disproves that no one outside of DC is interested in this story
note if you like, the usual Clinton & Sandy Berger Did It ! dreck is everywhere, although it looks like the dirty hippies are gaining ground with the whole reality based thingy :)
linky
Frank Probst @ 27
I think you’re definitely on to something there! And it makes me suspect that the negotiation they’re angling for is not immunity, but limiting the scope of questioning. In which case the further question becomes, do they think the investigators don’t yet know about the acts she’s trying to protect (in which case she’ll agree to answer questions on the topics they do know about), or that they do know, but it hasn’t gotten much publicity (like the loyalty oaths) and they think there won’t be public pressure so they can negotiate that away.
If it’s the second case, it seems like it would be a good idea to contact Waxman and Leahy about loyalty oaths and every other crime we suspect, so there will be public pressure about all of them.
Georgesimian @ 52
I know…I know…I’m going way out on a limb to impugn the ethics of our chief law enforcement agency. Just wanted to get in on the McCarthy-esque hijinks…ya know, see what it’s like.
Nice for ChimpCo to try and justify firing Iglesias by citing absenteeism when he is performing his patriotic duty in the naval reserves. So much for supporting the troops.
Christy Hardin Smith @ 43
Well, given recent evidence, the assumption that lawyers working at the Bush DoJ know anything about the law does seem pretty shaky… *g*
cbl @ 57
OMG! GardenWeb. It reads like an FDL comment section.
Nolo @ 28:
So, while citing the Libby model for their argument, they are trying to emulate the Ari Fleischer (immunity granted) model?
Interesting idea and makes sense.
As far as who is paying her legal bills, could it be Akin Gump is providing pro bono services, and if so, should they disclose?
JF @ 62
Uh oh, when those gardeners turn political . . . Hot Topics: Peonies and Abu Gonzalez.
OT – The Wapoo is doing a serious hatchet job on Pelosi in their opinion section.
Is anyone live blogging Ralston’s testimony today with the Waxman?
Christy MaGoo, you’ve done it again! Great post.
dreamcatcher @ 63
But wouldn’t “pro bono” from Akin Gump be an inappropriate “gift?” I remember reading on some forum that was tried and shot down during the Clintons’ various passion plays.
Bay State Librul @ 66
I think it’s a private meeting – not sworn testimony
whooops…the comment that I was quoting at 68 was from dreamcatcher, not nolo…bad edit on my part
Oh, what fun! I’m wondering if jerzeegirl 9 will show up around these parts soon.
mui @ 64
Posted by jerzeegirl 9 (My Page) on Tue, Mar 27, 07 at 14:46
“Bill, It’s irrelevant to this discussion. Yes, Clinton lied. And paid for it (and now his wife is paying for it). Can you refresh my memory, Bill? What exactly *is* the proper etiquette when being asked a personal question about extramarital sex?
Or are you suggesting that because Clinton lied, that every president can now do it with impunity. I am not quite sure why you brought Clinton up – in this particular discussion. What is your point?
However, since you did bring it up, let’s talk about Bush’s lies, which *is* relevant, since he still *is* president. Shall we discuss the personal lies or the ones he perpetrated against this country? Where do you want to start?”
I have a question regarding Goodling taking the Fifth Ammendment. If she is an attorney working at DOJ, isn’t she an officer of the Court? If so are there laws or rules regarding participating in investigations or interrogations? I know she never signed away her rights, but isn’t there something legally stinky with someone of the Court not following Court rules and still getting paid? I thought she should have been fired immediately for not attempting to uphold the law and supporting the Constitutoion as her oath declared. I know about oaths. I was an air traffic controller in 1981.
mui @ 50
Thanks, mui, appreciate that. Have only sporadically been able to get on the internet, haven’t been able to follow up on the company they named yesterday as American distributor (not ADM); wonder if they were run by a Bushie donor??
Still find it hard to believe this stuff isn’t in American food chain…
mc @ 71
Maybe someone should point her this way.
Helen @ 69
Thanks…
If it’s private can they put out a statement?
OldCoastie @
65
All this proves is that Nancy is doing a great job. The Republicans are in conniptions because Pelosi is outshining both Bush and Condi in Mideast diplomacy. And so far as I know, she has not given away anything improper.
What she is bringing to the table is an open mind and a willingness to talk. The Bushies can’t stand that because it interferes with the nuclear option.
OldCoastie @
65
No mention of the Repugs in Syria with her.
Georgesimian @ 77
you noticed that too…
OldCoastie @ 78
And the truth is, politicians make this kind of trip all the time, to all sorts of places.
dreamcatcher @ 76
And because it undermines their theme that “the only way to support Israel is to support the Israeli right wing in doing whatever they want.”
OldCoastie @ 65
I’m a little confused. I haven’t read a lot about this, but what exactly is the issue here? Pelosi says that Israel sent a message through her to Syria, but Israel says they didn’t. What’s the real story?
Rayne @ 73
Sure, As I said before folks in Asia are unfortunately all too familiar with China’s sloppy use of pesticides and other chemicals. If melamine was used in fertlizer, and contaminated some batch of wheat gluten . . . well, my head hurts to think about it.
Great Post Ms Christy Hardin Smith!!!
I logged on this am, hoping that you would have something to say about this latest Dowd letter and I was not dissapointed.
On a slightly OT but related matter, this article (via TPN) on Griffin’s (who replaced Cummins in AK)is a must read. Seems he generously padded his legal resume.
Further on Fred Hiatt’s outlandish slam of Ms. Pelosi today, check the comments under his editorial. The orchestrated deluge of Trolls is exceptional, even for the WaPo.
I especially like Mr. Hiatt’s claim that Ms. Pelosi is trying to establish a Shadow Presidency. She would have to topple Mr. Cheney first. If Mr. Hiatt’s scent of desperation were in the water, he would draw sharks from miles around.
mc @ 71
I know. She sounds great.
earlofhuntingdon @ 84
Fred Hiatt needs the Cliff Schechter, Glenn Grennwald treatment.
Thanks nolo@45 and Christy. IANAL and couldn’t see the connection between the two. It seemed a questionable assertion to make.
nolo @ 36
I guess this is the Repub version of free legal service for the disadvantaged.
Okay, gotta’ run, going to the beach.
Appreciate the post, Christy, had wondered if there were going to be any repercussions with the ABA or local bar in regards to the dismissals of the USA’s anywhere along the way…and you launched the first salvo. Good job, can’t wait to hear how DC Bar responds.
(Which makes me wonder who actually does respond, if at all…who’s on the DC Bar board?)
earlofhuntingdon @ 84
Ya the trolls are there but I thought Attaturk got in a good one:
It truly is amazing the manner in which Fred Hiatt will bend over backwards to defend the worst Administration on foreign policy issues since Madison got the town burned down.
…
dreamcatcher says:
April 5th, 2007 at 6:25 am
. . .So, while citing the Libby model for their argument, they are trying to emulate the Ari Fleischer (immunity granted) model?
Interesting idea and makes sense.
As far as who is paying her legal bills, could it be Akin Gump is providing pro bono services, and if so, should they disclose?. . .
as i think another commenter indicated,
i believe accepting pro-bono engagements
of this sort — at least, for so long as
ms. goodling remains a DoJ
employee — is problematic.
[aside: i cannot believe she is
STILL a DoJ employee — remind me,
what planet do i live on?]
where was i?
oh yeah(!) — i do think goodling
is a likely candidate for the
“i knew john dean. . . and you,
madamoiselle, are no john dean. . .”
sweepstakes — that is, in more
recent metaphors, i think she’s
looking for the ari fleischer out. . .
just my $0.02
These guys are even incompetent liars!
dreamcatcher @ 76
Exactly! They can’t stand anyone injecting a voice of reason into their neo-conservative scheming (would “diabolical” be too strong an adjective?).
-MS
OldCoastie @
30
The Bushies are much worse. I have all faith that the 3rd graders can mature over time.
Actually, Bush is not all that happy with the Republicans being there either. One of them, Darrell Issa, has been dissing Bush on failing to dialogue with Syria (as per the advice of Bush Senior’s consigliere, Jim Baker.)
The WH silence on Issa and other Republicans there is simply because spinwise, it would not look so hot would it, if he brings more attention to Issa and gives the latter more credibility. It is a lot easier for him (as well as WaPo to attack Pelosi.)
Republicans in Syria
I wonder if there is some magic language you have to use to get out of a subpoena using your Fifth Amendment privilege. In the first letter, Dowd asks that “…the Committee not call Ms. Goodling to appear at the hearings or in any other setting.” In the second letter, in several places, they “respectfully request that [the Committee] accept her declaration in lieu of an appearance.
The first formulation seems to leave open the door to negotiations, and the second doesn’t.
mui @ 82
Interesting line of inquiry, especially since a growing percentage of US foods and even flowers is coming from China.
Only somewhat related, I noticed that PBS News Hour finally did a bit on Colony Collapse Disorder, the systematic deaths of honey bee hives in 23 states, which is putting in peril commercial pollinization of you know, all the fruits, veg and grains we eat.
The News Hour listed several possible causes, but ommitted a major possible culprit – GM crops. News Hour’s major funder is ADM.
GM crops may be a problem because certain of the foreign genes in them are selected because they produce toxins that kill insect predators. Convenient when they kill the right ones, but not when they kill the bees needed to pollinate the plant.
Those toxins may explain the unusual failure of many bees to return to their hives – it upsets their navigational chemistry – and the unusual failure of other bees to plunder the dying hives. Another sign it may be GM crops, CCD has had much greater impact here than in Europe, where regulations prohibit planting many GM crops.
earlofhuntingdon -
I finally got a handle on the weight, depth, and breadth of their pervasiveness when I found them beating back the truth in a Honolulu Pennysaver
Christy,
Maybe D.C. Legal Ethics Opinion No. 31 has to do with members of the D.C. Bar dueling. Perhaps a phone call to Zell Miller might get faster results than e-mails to the D.C. Bar.
i dunno — who does? — but it seems
to me that in the SECOND letter, dowd
and king are simply trying to portray
their client as akin to the watergate-era
conspirators, and rely on “precedents”
set by sen. sam ervin. . .
the broad reference to “any other forum”
in the FIRST letter strikes me as a
simple acknowledgement that her testimony
will be subpoenaed on several fronts. . .
dowd and king need an “across-the-board”
deal — then she’ll sing like john dean did.
just my hunch. . .
nolo @
36
Good catch. I missed that announcement. Now, the bread crumbs on the trail are the size of boulders.
Mr. Mehlman, apart from running the RNC, is responsible for its mega-computer system, which can respond as fast as MasterCard with whether a would be ticket holder at a “private” Republican speaking event anywhere in the coutry votes “R”. Those without that little “R” in their file are denied entry.
I imagine Mr. Mehlman’s computer skills might also have been used to design various White House e-mail systems and their protocols. If so, and the ivestigation goes far enough, that might eventually conflict out Akin Gump. Hmm.
earlofhuntingdon @ 97
Another line of inquiry would be to investigate regulations/or more likely deregulations on all the above.
> I explained melamine was rat poison,
The LD50 for melamine in rats is 3500 mg/kg, so I don’t think it would make a very effective rat poison. It is an ingredient in some forms of hard plastic and a very large percentage of the world’s plastic manufacturing is now done in China.
In powdered form melamine is carcinogenic in rats and mice, and assumed to be so in humans. Every kitchen supply store in the world has hard melamine bowls for sale though so I don’t think it could be particularly toxic in the final form.
Cranky
billjpa @ 10
good morning, just getting up to speed here in CA. I saw this yesterday and fell for it. Lets just give them the benefit of the doubt, someone forgot to include “attorney” in that headline, no?
TexasBetsy @ 94
the difference is that 3rd graders are accountable for their behavior and they have enough sense to apologize when they mess up.
Pelosi, being a hook, line and sinker supporter of Israel, is unlikely to be differing in any meaningful way from the Israeli line of Take Other Peple’s Land and Dispossess them, and Hold On To That Land For So Long the rest of the world will stop telling them to give it back. If Pelosi were publicly saying that Israel must comply with 242, 338 et al, she might gain a little credbility, but she will not do so, having taken the silver pieces from AIPAC for so long……..
BTW — There was only one building WHATSOEVER between Bethany and Jericho, and it was 2,000 years old, so it most definitely was the allegorical “Inn of the Good Samaritan”. To help get rid of all this Christian Shit, Israel pulled it down round about the end of 1967!
The media punitocracy reminds me so much of high school “cool” kids cliques. Same behavior.
Cranky Observer @ 103
Final form, no. But used in fertilizer, yes. I think it’s supposed to promote nitrogen or something. Like I said I said, my understanding of science is limited.
I think any attorney who is lighting the torches and bringing out the long knives based on the fact that Goodling is asserting a Fifth Amendment claim should be ashamed of themselves.
It seems that those of us who despise the way in which this administration has flaunted the law or, more importantly, wholly ignored its import–whether it be the right of habeas corpus, fundamental due process, the application of the Geneva Conventions, the Constitutional mechanisms of separation of powers, etc. etc. etc.–cannot now claim that the right to exercise Fifth Amendment protection is now a glaring clarion of some guilt on Goodling’s part.
The Fifth Amendment protects Democrats and Republicans alike. If someone claims a Fifth Amendment right to protection against self-incrimination, we can’t twist that assertion of right into a Scarlet Letter.
Or else we stoop to their level.
And I disagree with the interpretation that the LEO 31 is no longer precedent. To the extent the ethics opinion is consistent with the current Professional Responsibility rules, it will remain in effect.
although 95% of us here are not lawyers – we feel safe in assuming most of the “loyal bushies” are either second tier hacks or appear so due to their inexperience with the Law, right ?
I’m having a little chuckle thinking
what if . . .
Ms. Goodling and others (alledgely) employed loyalty oaths just as an intimidation/compensatory tactic in interviewing others with more experienced, higher quality pedigrees ?!?!?
in other words, did they pull yet another, I know you are, but what am I ? move, and their own lack of legal depth failed to apprise them they were breaking the law in doing so ?
yeah, ol cbl likes the little ironies
Good morning, all.
OT- GWB bump & run visit to So.Cal. yesterday relegated to page A11 by the L.A. Times.
No mention of the dearth of applause @ Ft. Irwin speech in the article, but I was surprised to hear it pointed out in some local radio coverage this a.m…
Ted Atkinson @
109
Uh, then why does it state on the DC Bar’s own website that if it’s not on the website, it’s not considered precedent? Hello?!
Cranky Observer @ 103
FDA alert for melamine
Melamine in fertilizer via San Francisco chronicle
The brand was found to have been made with a batch of wheat gluten shipped to the United States from China that the FDA said was laced with melamine.
And in turn Hill’s shipped their melamine laced products to countries to places like Taiwan and Hong Kong. The irresponsibility of it.
The linked LEOs may have been reconsidered and determined to apply under the current rules of professional responsibility, whereas other LEOs may remain in effect but have not expressly been determined accordingly at this time. I don’t think it’s necessary the case that if it’s linked, it’s good, and if not, it ain’t. I just don’t think it’s as cut and dry as that.
I also have questions regarding the applicability of the LEOs to Congress, even to staff attorneys acting on behalf of Congress.
Ted at 109 — And where, pray tell, do you see either torches or long knives? What I wrote and what I see in comments is a genuine attempt to discern (a) whether Goodling and her attorneys have a legal basis for their assertions which, frankly, is questionable as a blanket assertion to prevent any and all questioning by my reading of all the precedents; and (b) whether the legal citations are, indeed, valid arguments. There is also the very real question of whether this is a valid legal assertion or whether it is public relations posturing to the media and/or a bluff to the committee with no foundation on which to stand. All of which is not only a valid, but questions that need to be asked, if not by the committee than by someone.
I’m just trying to get the ball rolling on asking the questions. But I do say in the post, as do a number of commenters, that if there is a vaild basis, that the 5th amendment is a right that she should assert. So your problem, then, would be what, exactly? That citizens have no right to ask questions about the actions of people in government? Sorry, NOT buying that one.
Hi Cranky. How did melamine get on to this post?
new thread — Talking Turkey
Still no answer from the DC Bar Association, btw, on whether or not No. 31 is still in effect or superceded or whathaveyou.
CHS,
Is the bar assn even telling you what is contained in NO. 31?
[emphasis supplied.]
as to your last point — i think
that is precisely what is not known
(as of this moment, but will be, when
christy hears from the DC bar authorities):
is opinion no. 31 consistent with the
model code, as adopted and amended, in DC?
that is what the discussion is about.
we don’t yet know. so, like your advice
[with which i do mostly agree] re pleading
the fifth without prejudice, let’s “wait and see. . .”
[i must point out that i feel less-than-
thrilled that a high-ranking attorney inside
the DoJ asserts the fifth, and keeps her job,
while refusing, apparently, to cooperate with
a documented internal inquiry on the same
subject. . . i believe it was sen. patrick
leahy’s march 30, 2007 letter to alberto
gonzales that made thses interesting tidbits
available. . .]
maunga @ 117
Umm ChimpCo and FriendsInc put it here?
Sorry, I promised Rayne to look into something, and it turned into an off topic marathon. I apologize.
Attaturk @
1
Actually, she’s taking it like Bush’s BFF, Ken Lay. And Kenny-boys good buddy, Andrew Farstow [sp?].
skilly at 120 — One of our readers graciously sent me a copy and I’m just now getting a chance to read it. Will let you know.
Christy Hardin Smith @ 119
Might it help to have a DC lawyer call the Bar Association, on the theory that a local can get an answer when a meddling outsider might not? Just a thought . . . or perhaps a suggestion to any lurking DC lawyers here.
Ted @ 109:
IANAL, but I doubt very much if Christy was implying that Goodling does not have every right to take the 5th. In fact she says so. I think Christy’s post was questioning whether Goodling’s lawyer was on solid ground re the DC bar’s own rules, to cite one of the rules in order to impugn Congress’s right to question Goodling.
You could say, they are throwing sand in Waxman’s eyes. Certainly, they are veering in that direction by invoking McCarthyism in their public statements, thus introducing an inflammatory ingredient. The more they do this, the more one suspects that they are exercising the arts of PR spin as much as legal art.
It seems clear that they are jockeying for position for their client, which is fine, but Waxman and committee should also be aware if Goodling et. al. are gaming the rules to gain an advantage for their client.
Christy Hardin Smith @ 116
What-all she said, plus Bush has been flouting the law, not “flaunting” it.
Some things just are too good to pass by:
Guess one of the chum finally had a belly-full and decided to snarl the ol’ line on the reel….
Question to Newsweek…why does this only make the online edition???????????????
earlofhuntingdon @ 97
I watched this show. What they said is that the recent droughts in the west, that have been going on since 1999, have led to reduced numbers of plants that bees use for nourishment, in other words, maybe it’s global warming.
They also said there is a parasitic bug that attacks the bees.
Maybe you have a mistrust of ADM, GE, but as far as I have seen, having watched Jim Lehrer for close to 15 years, he is a model of journalistic integrity.
Mods- sorry, I now see i clustered too much. Promise i won’t do it again.
waiting patiently, while christy reads dc no.31. . .
Two points:
1) The fifth amendment is intended to prevent torture, no? Ironic…
2) Is Goodling really pleading:
“I refuse to answer because if I did, I would lie, and that would be illegal, so I would be incriminating myself”?
In the absence of more information, that must be my supposition.
CHS,
might I be able to read it too?? was that fax or e-mail that LooseHeadProp sent?
earlofhuntingdon @ 97
they produce toxins that kill insect predators.
My understanding is toxic to things like aphids and mites, which live of plant juices, rather than honeybees. Not that there aren’t plants that are toxic to bees – Aesculus species are notorious for this – but generally speaking pollen and nectar are not problems.
Grains are wind-pollinated, along with some other food plants. Fruits and veggies need bees, thought, and researchers are looking at some of the other species for pollination (some of these other species actually do better than honeybees for this); they don’t produce honey, though.
ooh — me too?!
mightn’t this take a while — to
parse opinion no. 31, that is? i
do think, given its vintage, it likely
makes reference to sections of the OLD
code, not the new, as amended, rules. . .
so the task involves comparing the
language of the old code sections
mentioned in opinion no. 31, to the
presently-analogous sections, if
they still exist at all. . .
then deciding whether the new code
language modified the thinking of the
bar authorities vis-a-vis the old code. . .
i’d certainly offer to help, as i did,
for a time (a long time ago, in a galaxy
far, far away. . .), prosecute such
matters before the bar authorities. . .
but i’d need an e-mail (or .pdf) of
it — i do already have the old and
new versions of the DC code. . .
just sayin’. . .
Sally @ 31
Federal timekeeper here — her Leave Approving Official could have authorized an “excused absence” aka “administrative leave.”
Admin leave in my agency is often granted for donating blood, taking the CPA exam, and closing down the office due to bad weather.
Looks like CHS is pulling overtime for doing two posts Back to Back
Brisingamen @ 136
How many free days does one get for that?
mui @ 107
In particular, melamine is a fertilizer used in Asia. Given that melamine is contaminating a refined wheat product, I suspect that there is a possibility that wheat and/or wheat products and melamine were present at the same site, raising the specter of a screw up of epic proportions.
I’ve also seen a lot of discussion to the effect that melamine isn’t toxic enough to cause pet deaths, given the rodent toxicity data. One has to be careful extending across species with this data. Case in point – theobromine in chocolate is far more toxic to dogs than humans.
I think the book is still out on what is really going on here.
JF @ 81
I don’t know what Pelosi is up to, but what’s going on around her might include:
Hacked rom the last 1/4 of this .
skilly @ 138:
“. . .How many free days does one get for that?. . .”
all i know is that she has — through
her lawyers — continued to say (and
the DoJ has confirmed in writing), that
she is on a PAID leave of absence. . .
Very late to the party here, but I have a couple of thoughts for Christy from a D.C. lawyer:
1. I believe you are correct that the earlier opinions that were not carried forward form the switch from the Model Code to the Model Rules are no longer in effect.
2. I don’t think its’ correct to talk about any of these opinions — carried forward or not — as “precedential.” They aren’t binding, although they do give some idea as to what guides Bar Counsel’s charging decisions. None of them are therefore “precedential” in any real sense. Indeed, only a small handful of D.C. Court of Appeals attorney discipline cases even cite to them.
Goodling’s attorney is mixing constitutional rights and protections with privilege conventions,IMHO to create such a mixed up mess the committee gets lost in how to respond. The 5th can’t be asserted prospectively, but she can come to the committee, refuse to answer questions and cannot be forced to listen to every question. The way it works in practice is that the committee asks a few questions beyond identifying information and after receiving a few assertions of the 5th, inquires into whether she intends to assert the 5th to every question, and after she says she does, she is dismissed. The assertion of attorney client privilege is appropriate only if she was acting in her capacity as an attorney when preparing Dowd for his testimony. That is a matter that rises and falls on the specific facts of each case and is decided based on an examination of a number of factors which are ferretted out in front of the court in which the assertion occurs. It’s a rare assertion and not one of the more well developed areas of the law. That may be what the Ethics Opinion is about. (Christy?) And as to the question about being an officer of the court- that is not applicable in this instance IMHO. Congress is not a part of the DC court system and accordingly is not one of the tribunals she would owe a duty of candor to under ethics rules unless the DC bar’s rules specify that. Even if she did, it would not apply here – the duty is not to tell the court that you’ve withheld information from your client. Dowd’s assertion that Congress can’t assume that her invocation of the 5th indicates criminal behavior may or may not be applicable in this case – I just don’t know – but, normally, that is an instruction given to the jury in a criminal trial so that they won’t convict a person because they did not testify in their own defense. My instinct tells me it is not applicable here, but my instinct has failed me before. I think there are two sources of jeopardy here – the first is the perjury trap her lawyer mentions, which is just so much crap and no basis for the proper assertion of the privilege at any rate; the second is the possibility that a conspiracy to obstruct a congressional investigation occurred, which Dowd more than less suggests.
Boy, you guys sure get up early!
Ted Atkinson @ 109
Nitpick alert: You’re using the wrong word — the one you want is flauted.
To “flaunt” is to show something off in such a way as to induce envy of others.
Using the word in a sentence: Liz flaunted the 69 carat diamond right under her rival’s nose.
To “flaut” is to defy: Michael turned his back on the Captain, flauting his direct order.
We now return you to your regularly scheduled thread…
VJB @ 144
You have no idea.
i am certain that being “non-candid“
in front of a congressional hearing
is still a crime — it wouldn’t matter
whether she’s a lawyer, in that case. . .
a lot of the rest of yours — especially
about the new model rules supplanting the
old code, and the advisory-only nature
of these opinions — seems right to me,
but that part can’t be right. . .
skilly @ 138
How many free days does one get for that?
As many as the LAO permits — it will vary from agency to agency. There is nothing binding in the rules to prevent an LAO from giving an employee months of Admin Leave should they wish to do so…
Argh, caught by a homonym –
Sigh, I meant “flout” not “flaut.”
Sorry.
whtt @ 140 if we are not EPUd……..
Surely Israel is Nazi Germany in 1938? especially when one reads the comments of their leaders, from ben Gurion all the qway to Netanyahu and Sharon. Their genocidic, racist comments in public would have been uttered by Hitler or Himmler only in private in front of really committed supporters, but not these guys; they know their friends who own all the media will support them.
pogo @ 143:
The D.C. ethics rules actually have a broad catch-all ‘don’t do dishonest things’ rule as well as the specific rules regarding candor to the court. Now Goodling is not a member of the D.C. Bar (there’s an exception to the unauthorized practice rule for gummint lawyers), so it’s doubtful that D.C. Bar Counsel would have any jurisdiction to apply such a rule. But if the ethics rules in whate ver jurisdiciton she’s licensed in have such a provision, or have a specific provision that deals with legislative forums and not just judicial ones, there could be disciplinary fallout for sure if she indeed suborned lying to Congress.
As to the attorney-client privilege issue, the privilege is considerably narrower for governmnent attorneys than it is for private attorneys, and there’s always the crime-fraud exception anyway. I don’t see any conceivable attorney-client privilege that would shield her confabs with McNulty — or the suspected “loyalty oaths.”
Brisingamen @ 149
Plus an earlier flautist beat you to it.
P J Evans @
134
Current GM crops contain a type of “BT toxin”, which affects only Lepidoptera (moths and butteflies), not aphids or mites or honeybees.
Finally, as an entomologist, a reason to delurk.
Arc Parser,
Good to see you!
Hope you will bee back often.
I mite
FWIW, i read somewhere last night on this that there is some assertion that bush’s monica is licensed in VA. however, this same source (sorry; it was very late, and i was very tired) asserted they could not find record of such. possibly emptywheel??
if true, none of the DC ethical code issues apply here anyway; we need to be barking up the VA tree. that is, if she’s even licensed there. or anywhere. now would that not be the biggest hoot of all? not only do they hire young green pretty thing regent law school grad loyalists, but they don’t even have to pass the bar.
i know; too unlikely for words. but this mafioso mentality never ceases to amaze….
I do not even know where to post these words, but when it comes to oops, language, goofs, almost any post will work for this Pres/Adm. So, will someone look into a word search or explanation for a recess appointment per the current swift boat ambassador. Does an Easter holiday qualify under the guidelines for a recess appointment? Where are the strict constructionists when we need them. I guess this is one more decision based on gonzo legal advice. Atleast we have the precedent that such a ruse did not work so well for Bolton. Among the lawyers here, can we hear a word on the meaning/criteria for recess appointment? Next thing we know it may = a bathroom break. Happy Easter: no telling what else may happen.
lll @ 156
That’s certainly occurred to me; I’ve assumed that she is in fact licensed somewhere but given that doffuses like Miers (who couldn’t even pay her bar dues after repeated warnings and got herself suspended) ascend to high positions, I wouldn’t be shocked if a counselor to the AG didn’t have a license in the first place. far as we can tell, she’s never practiced law in the traditional sense.
maunga @ 150
Speaking of dishonest genocidal racists. (Goes against consensus reality, but true.)
Here’s more interesting on some motivations for Iran attack. (fresh water via nuclear desalinization)
earlofhuntingdon @ 101
and cranky observer @103 “melamine is rat poison”
my morning eyes started mixing Mehlman with melamine… made me giggle
whtt 2 159
In 1960 or 61 I was told by a senior UN person that Israel would cause or start a war in about 1967, principally to steal the West Bank, because that would be when the tunnel from the conf;luence of the Yarmouk and Jordan would be finished.
The acquisition of the giant aquifer under the West Bank would be “useful” too!
The last time I was out there, not too long ago, there was much talk of the pipeline being built/mooted to bring water from Turkey to Israel. However, all that lovely water in the Lebanese hills must make them drool.
There is, I think, a graph somewhere which shows when the birthrate in Sa’udi crosses the adequate water supply. De-sal plants in the Gulf, along with the taking of the Tigris/Euphrates waters upstream, are dramatically changing the salinity of the Gulf….. so they may have to bury very long pipes from Red Sea de-sal. plants……
But we digress……….
maybe her alma mater is kicking in some bucks – payback for her being a good Christian soldier
Comment @ 129, the News Hour piece on CCD went through a long list of possible causes, suggesting scientists so far have no clue about what’s killing the bees that are essential to commercial agriculture. They did not discuss readily available materials on a similar, but significantly smaller problem in Europe. If nothing else, this would have been worth mentioning as a control group relating to causes that might be peculiarly North American.
Their apparently thorough analysis failed to mention one of the most incendiary possible causes – GM crops – not even to debunk it in favor of others. It does not require an X-Files mentality to find that curious or the topic under-reported elsewhere on the MSM.
I have seen in another blog a record that showed that a Monica Goodling was licensed in Virginia. I don’t have the site, it was probably a comment in TPM Muckraker from last week. It mentioned that Virginia for some reason was playing coy about revealing what local law requires be public information. It would make sense for Goodling to have taken the Virginia bar. She went to law school there and, like thousands of others every year, desperately wanted to work in Metro DC.
The precedent that holds that one cannot take the 5th simply because he or she fears that someone will take those answers and falsely accuse the witness of perjury is United States v. Susan McDougal. You can read about it here.
Visit the Schapira blog, What we know so far …
“… and tell ‘em Big Mitch sent ya!”
earlofhuntingdon @ 163
I agree.
The D.C. LEO No. 31 cited in the letter is from March 29, 1977, not 1971.
Stephen Parrish, CPA @ 23
What the letter from Akin Gump (the firm that includes Dowd and King, Goodling’s lawyers) asserts is that the lawyers who work for Congress — who likely are members of the DC Bar — may be constrained by the interpretation in Ethics Opinion 31 of the DC rules of professional responsibility.
nolo at 147 -
Don’t misunderstand what I was trying to say. Indeed, lying to Congress is a crime, but that’ a different issue, although closely related. There is criminal exposure for lying to Congress, but there is only jeopardy to your law license for violating Rules of Professional Conduct (or contempt, but that’s a whole other kettle of fish) by not being candid with the court. I don’t agree that either is acceptable before the appropriate respective bodies, but the source of the duty before each is different, as is the course of action that the lawyer would have to take in each circumstance. e.g. – in front of a court, where the RPC govern a lawyer’s responsibility for candor to the court, the lawyer is never (except in extremely limited circumstances) a witness, and the option for the lawyer is never to incriminate their client by being candid with the court. However, in front of Congress, Goodling is being called not in her capacity as counsel to Gonzales, but rather to testify as a witness in its investigation. She might assert attorney client privilege in that instance or invoke the fifth, but her representations are not likely governed by her duty of candor to the courts.
“Dowd’s letter ratchets things up a notch by citing to D.C. Legal Ethics Opinion No. 31 (1977) that states it would violate the spirit of the profession’s rules to require a witness to appear before a Congressional committee just to assert the Fifth Amendment when counsel notifies the committee in advance of the witness’ decision to refuse to testify.”
from http://lawprofessors.typepad.c…..rime_blog/
Sebastian at 151
Thanks for that. I don’t see a valid shield that comes under the attorney-client umbrella either. I think that were she convicted of lying to Congress or suborning perjured or even just false testimony, the Virginia Bar might have a few ways to strip her of her license. I know they could in WV.
Henry Reid re Bush: “He is president of the United States, not king of the United States.”
Bush to Senate (and Reid): Screw you! The recess appointments.
Who knows? Maybe Bush will push a reluctant Congress to impeach him yet.
Here is the text of one of the rules intepreted by Ethics Opinion 31 (the ethics ruling Dowd and King cite) as it was promulgated by the American Bar Association in 1983. This is not the official version that was in effect in DC when Ethics Opinion 31 was issued; rather, this is the version the ABA recommended be adopted by the states (and non-state jurisdictions). The provision the DC lawyers working for Congress might violate (Dowd and King assert) is (c)(2) (in bold)
DR 7-106 Trial Conduct.
(A) A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.
(B) In presenting a matter to a tribunal, a lawyer shall disclose:
(1) Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.
(2) Unless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him.
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.
(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.
(7) Intentionally or habitually violate any established rule of procedure or of evidence.
The ABA’s version of the other rules relied on in Ethics Opinion 31 are:
EC 7-10
The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.
EC 7-14
A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer not having such discretionary power who believes there is lack of merit in a controversy submitted to him should so advise his superiors and recommend the avoidance of unfair litigation. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.
Christy, the May 1971 date pretty much corresponds with the passage of Nixon/Mitchell’s Crime Bill, which included provisions changing the use of 5th Amendment privilege before Congressional Committees.
Since you have real access to one of the technicians who wrote and lobbied through these provisions — why not contact him, and see if he would be willing to explain things here on the blog — Who did this law writing and working it through Congress — Well John Dean. It was his claim to fame that led to his being moved to the White House.
Now I am not a Lawyer, but I did two year long sequences in Constitutional Law as History in Grad School — and way back during Watergate did a good deal of both legal and historical research on this — as it was actually evolving as Watergate played out.
What Nixon more or less wanted to do with this part of his crime bill was to restore to congress some of the authority it had when Nixon was on HUAC, but which it lost with the Watkins decision of June, 1957, when Earl Warren famously wrote, Congress does not have the power to expose for the sake of esposure. The method for doing this was to give congress the ability to confir one of two kinds of immunity on a witness taking the 5th, thus trumping the rights to the 5th. Thus was born 1) limited use immunity, and 2) Transactional immunity. And John Dean is the total expert on this. I suspect the DC Bar notes are a reference to changes the inception of this law caused, as the DC Bar would likely be very interested in changes in practice before Congressional Committees.
Nuther point: The rules on the 5th in a judicial process are significantly different from those that apply to sworn testimony before Congressional Committees, or appearances in executive sessions. Keep this in mind. Congress has real limitations on the kinds of questions it can ask — they have to clearly be relevant to oversight functions of a committee, and/or they have to have clear legislative intent. Oversight and Legislative intent can be very broad (Ervin’s Committee Mandate was actually to looking into the way Campaign Reform Laws put in place in 1972 actually worked), but witnesses do have protections against many questions outside these limits. Anyhow, important not to mix up the rules for using the 5th between the Courts and Congress.
Anyhow, check with John Dean and see if he would like to be “Authority for a Day” on immunity sometime soon.
One last rule (or “Ethical Consideration”) relied on in Ethics Opinion 31:
EC 7-25
Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. Thus while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, he is not justified in consciously violating such rules and he should be diligent in his efforts to guard against his unintentional violation of them. As examples, a lawyer should subscribe to or verify only those pleadings that he believes are in compliance with applicable law and rules; a lawyer should not make any prefatory statement before a tribunal in regard to the purported facts of the case on trial unless he believes that his statement will be supported by admissible evidence; a lawyer should not ask a witness a question solely for the purpose of harassing or embarrassing him; and a lawyer should not by subterfuge put before a jury matters which it cannot properly consider.
Currently, the relevant ethical rule (to which the DC Bar members working for Congress would be subject) that might (MIGHT) arguably (conceivably?) affect or create some professional duty not to call before Congress a witness who intends to “take the Fifth” would be this one, the current version of which went into effect on February 1, 2007:
RULE 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a writing relating to the representation of a client and knows, before examining the writing, that it has been inadvertently sent, shall not examine the writing, but shall notify the sending party and abide by the instructions of the sending party regarding the return or destruction of the writing.
Christy asks:
In my experience as a lawyer (and a sometime professor of professional responsibility), lawyers invoke the rules of professional responsibility to one another for one reason and one reason alone: as a threat. Continue with your planned course of action and I will see to it that you have to worry about keeping your license, responding to the bar, etc.
Sara at 175 – Great points about not mixing up the standards re: the 5th in front of Congress and in the courtroom.
I’ve been surfing trying to find out if Goodling is amemberof the VA bar,and haven’t been able to find confirmation of that. The VA bar site doesnot have a membership directory that I see,and I haven’t seen any mention of her being a member of that bar in any of the web references I’ve seen. Still looking, though.
Robert at 178 – you aren’t by chance a member of the Virginia Bar, are you? If so, do you have access toa directory of VA Bar members?
pogo @ 180
Sorry, no. Not a member of the Virginia State Bar.
Still very curious who is funding the high priced lawyers working to keep her from testifying about her work as a FEDERAL EMPLOYEE?
Christy Hardin Smith @
26
Isn’t there a fairly simple answer to this conundrum?
Dangle immunity in front of her, but condition it on coming in and making a full proffer. If the proffer ultimately turns out to be BS, then nail her ass for obstructing a congressional investigation.
Delurking..
Tahnk you Christy for yet another brilliant post. Re: “Who is Paying her bills”. Sorry I cannot quote – either from Atrios comments or TPM…she earns $130,000 something at DOJ. Recently purchased $300,000 home with a $5,000 down….well below . Apparently she is not rolling in it, so where or whom does this MOney appear…as in Watergate, follow the money.
Just an observation from following this story. I noticed that all the online news accounts have the same picture on this woman so I did a Google image search.
There is a much more flattering and descriptive (frontal) picture of her but according to one paper I read they were denied the right to use it. Maybe Monica just doesn’t want to be anything other than anonymous.
The gift rule prevents her from receiving pro bono legal service or allowing others to pay her legal bills. I don’t think it prevents her attorney from offering favorable financing terms or a payment schedule.
Once she’s no longer employed by the government, her friends and associates will legally be permitted to pay her legal bills. I don’t think Dowd will have to wait very long for his money. I won’t be surprised if she’s a private citizen within the next 2 weeks.
Consider that she’s been on paid leave for the past 2 weeks. She can’t have a lot of vacation time left and I very much doubt the DOJ wants her back in the office. An employee who has plead the 5th cannot be anywhere that requires national security clearances. These days, I suspect that’s pretty much the whole DOJ.
Unpaid leave? Not with house payments and mounting legal bills. I think she’ll be forced to resign very shortly, if only so that her GOP friends can legally throw her some cash.
“You can’t ask me to testify because I will simply invoke the 5th. If Scooter had done the same, he would not be looking at jail time. We can lie, cheat, steal, mame the military, spend our children into crushing debt, kill millions of people.”
Come on!! How long can this crap go on?
I think it is high time that long knives be drawn and that tourches be lite.
pogo — not to quibble, but commission
of almost any crime, and certainly any
crime involving moral turpitude — like
lying to congress — is direct grounds
for disbarment by summary proceedings in
most states — i dunno’ ’bout DC, but i
suspect it follows the majority rule. . .
and, btw, the attorney-client privilege is
not hers to assert — it belongs to the
government; not gonzo — the governement.
presumably the government won’t assert
it in a defense to the charge that some
of its highest-ranking agents lied to it
about matters involving the exercise of
criminal prosecutorial discretion, in part-
isan-charged regional USA investigations. . .
so — a proposal — let’s just agree
that monica “take-five-for-freedom-fries“
goodling is in various forms of peril, even
without considering whether she testifies
before congress. . .
The attorney letter seems to be asking for immunity, this coming from someone who knows nothing about the law.