As everyone undoubtedly knows, Monica Goodling has decided to take the fifth rather than testify before Congress:
"Attorney General Alberto R. Gonzales's senior counselor yesterday refused to testify in the Senate about her involvement in the firings of eight U.S. attorneys, invoking her Fifth Amendment right against self-incrimination.
Monica M. Goodling, who has taken an indefinite leave of absence, said in a sworn affidavit to the Senate Judiciary Committee that she will "decline to answer any and all questions" about the firings because she faces "a perilous environment in which to testify." (...)
Goodling contended in her affidavit yesterday that Leahy and other lawmakers, including Sen. Charles E. Schumer (D-N.Y.) and Rep. Linda T. Sanchez (D-Calif.), had already "drawn conclusions" about the prosecutors' firings.
Dowd said the "hostile and questionable environment in the present Congressional proceedings is at best ambiguous; more accurately, the environment can be described as legally perilous for Ms. Goodling.""
The full letter from Ms. Goodling's lawyer, with her affidavit, is here (pdf). As lots of people have pointed out, the Fifth Amendment says that no person "shall be compelled in any criminal case to be a witness against himself"; and this means that while Goodling clearly has the right to take the fifth if she believes that her testimony might incriminate her, it does not mean that that she can decline to testify just because she thinks her questioners might be biassed or mean. I like Sandy Levinson's way of making this point:
"What is the precise nature of the ostensible "constitutional right" that she is invoking on the advice of counsel? Can we now explain to the IRS that we are not sending in our tax return this year because, given Al Capone and other examples, we just don't trust the IRS to play fair with people it views as public enemies (and, in the age of the Bush-Cheney Administration, that could be a very broad category indeed)? If not, why not? Or is there some special principal--call it the "non-oversight one"--that applies especially to Congress? And, by the way, does it apply only to officials of the Executive Branch, or can any private citizen invoke the "I really don't like you people and therefore I'm taking the 5th" defense? It would, of course, be entirely different if she were forthrightly willing to say "I'm not sure that everything I did was really legal and therefore I'm going to be prudent and refuse to talk about any of it," which is certainly an inference one can draw from most persons' invocation of the Fifth Amendment. "
Dan Froomkin also makes a good point about Goodling's lawyer's letter:
"And he cites "numerous examples of witnesses who gave testimony before Congress and then faced criminal investigations and even indictments for perjury, false statements, or obstruction of congressional proceedings, including United States v. Poindexter, United States v. North, United States v. Safavian, and United States v. Weissman. . . .
"[T]he potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Scooter Libby."
But here's one thing all those people had in common: They lied."
Christy at Firedoglake has some interesting background on Goodling's lawyer, which leads her to conclude that "Ms. Goodling either has a nice cash stash, that someone else is footing her legal bills, or that Mr. Dowd is an old family friend, because a man with this background does not come cheaply to the negotiation table". Here's a decent profile of Ms. Goodling, and here's an article about the law school she has her degree from. (It was founded by Pat Robertson.)
So what, I asked myself, can I bring to the table, now that everyone else has said such illuminating and insightful things? Well: I thought of one admittedly tiny thing.
I tried, mostly unsuccessfully, to find reactions from this on the right, and in
all both the posts I found, one mysterious term kept coming up: "perjury trap". What, I asked myself, is that? I know about normal traps. A rabbit comes hopping along, taking the morning air, when suddenly -- clank! -- great huge iron jaws slam shut on his tiny paw, leaving him hurt and terrified, with no way to escape. I can see how other people's perjury might produce a similar effect: eight respected citizens all testify, under oath, that you personally run the Medellin drug cartel, and suddenly -- clank! -- the prison doors slam shut, and you are doomed, unless you manage to tunnel through to the cell of an erudite Italian Abbé who tells you where to find the treasure of Monte Cristo, in which case you are James Caviezel.
But how could anyone trap you into performing an entirely voluntary action, like lying under oath? Can't you just avoid the alleged trap by the simple expedient of telling the truth? This was a mystery to me. Moreover, it wasn't clear to me that the people who were using the term understood it any better than I did. So I decided to find out what a perjury trap was.
As far as I can tell, the answer is this (from US v. Chen, 933 F.2d 793 -- my very first ever Lexis search, and it worked!):
"A perjury trap [**8] is created when the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury. United States v. Simone, 627 F. Supp. 1264, 1268 (D. N.J. 1986) (perjury trap involves "the deliberate use of a judicial proceeding to secure perjured testimony, a concept in itself abhorrent"). It involves the government's use of its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury. See United States v. Crisconi, 520 F. Supp. 915, 920 [*797] (D. Del. 1981). Such governmental conduct might violate a defendant's fifth amendment right to due process, Simone, 627 F. Supp. at 1267-72, or be an abuse of grand jury proceedings, Crisconi, 520 F. Supp. at 920. See generally Gershman, The "Perjury Trap", 129 U. Pa. L. Rev. 624, 683 (1981)."
In other words: when you are questioned under oath, and the purpose of the questioning is not to find something out, or advance an investigation or a trial, but simply to get you to say something false, that's a perjury trap. And even though you could avoid the trap by simply telling the truth, when courts find (as they seem almost never to do) that you have encountered a perjury trap, they may dismiss charges of perjury against you, since to haul someone up in front of a court or a grand jury not to investigate a crime that has already been committed, but to induce you to commit a whole new crime, is an abuse of the system of justice.
But this is only true you are not being asked to testify for some legitimate reason. That's why the court goes on to say:
"When testimony is elicited before a grand jury that is "attempting to obtain useful information in furtherance of its investigation", United States v. Devitt, 499 F.2d 135, 140 (7th Cir. 1974), cert. denied, 421 U.S. 975, 95 S. Ct. 1974, 44 L. Ed. 2d 466 (1975), or "conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction", United States v. Chevoor, 526 F.2d 178, 185 (1st Cir. 1975), cert. denied, 425 U.S. 935, 96 S. Ct. 1665, 48 L. Ed. 2d 176 (1976), the perjury trap doctrine is, by definition, inapplicable. "
If a court, a grand jury, or Congress has a legitimate reason to question you, and to ask you the questions it does, then it's not a perjury trap. It seems obvious to me that the Congress does have a legitimate interest in questioning Ms. Goodling about her involvement in the firing of the US Attorneys. Even someone who would not have chosen to investigate this had s/he been in Congress would presumably not argue that it is not a legitimate inquiry at all; and Ms. Goodling's testimony is plainly relevant to it. So as far as I can see, this is a non-starter.
Ms. Goodling has no legitimate reason to be afraid of a perjury trap. That's my helpful tidbit for the day.
Tangential question for the lawyers: as I understand it, claiming that you have encountered a perjury trap is a defense against perjury. It would seem, offhand, to be most obviously relevant when you have already perjured yourself. Most of the hypothetical examples I've encountered seem to turn on the soon-to-be perjurer not knowing something that her questioners know: e.g., that they have evidence that what she's about to say is false. They are not traps whose nature is clear to the perjurer at the time. So my question is: does the concept of a perjury trap have any useful application to a situation you have yet to encounter, or is it the sort of concept whose main application is retrospective?