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March 28, 2007

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I thought this post on TPM was an interesting take on the whole thing which I think (if true) eliminates the question of a perjury trap in this case (I quote the whole thing)

Monica Goodling does have a good faith basis for pleading the Fifth Amendment - just not the ones in her lawyer's letter that are getting all the attention.

Under the federal False Statements statute, 18 USC 1001, it is a felony to cause another person to make a false statement to Congress. Since McNulty has allegedly told Senator Schumer that he made a false statement to Congress based on information provided to him by Monica Goodling, Goodling could very well be prosecuted for a Section 1001 violation.

All the rest of the crap in her lawyer's letter is intended to sooth as much as possible WH anger at her for invoking the Fifth.

As I recall, Clinton was asked the crucial "did you have sex with Ms. Lewinsky" question under a strained complicated definition during discovery - he and his lawyer requested that he be allowed to simply describe what had happened rather than say yes or no to a question not phrased in simple dictionary English. If my understanding is correct, this violates "attempting to obtain useful information in furtherance of its investigation".

Yes, President Clinton was caught in a perjury trap. The special persecutor already had Monica's testimony concerning her and Bill's sexual encounter, and they may have had Bill on tape promising not to disclose it. So they asked him the question, which really had little, if anything, to do with their over arching investigation, knowing he would lie. The probable reason Clinton was not prosecuted for perjury was that neither the question nor his answer were material to the purpose of the investigation that was going on.

Goodling faces a similar kind of trap. Congress may already have someone else on record, via a private interrogation, relating to any number of subjects pertaining to the purge scandal. If she is asked questions about it, and her answer varies from what someone else has said, she could be charged with perjury. Or, if she says "X" about subject "A", and some other witness testifies "Y" about the same subject, she could be similarly charged. When you consider that she is being played off against a White House which exhibits all the characteristics of a compulsive, chronic liar, it is not difficult to sympathize with her position against testifying.

Doran Williams -- as I understand it, what makes something a perjury trap is not whether or not the prosecutors (or, in this case, Congress) already have evidence about something; it's whether or not the questions they ask are part of a legitimate attempt "to obtain useful information in furtherance of its investigation" (see US v. Chen above.)

When something is a legitimate avenue of inquiry, there can be all sorts of reasons for asking about some question on which you already have some evidence. Your evidence might not be conclusive, for one thing. You might want corroboration. You might be asking about e.g. a meeting to set the stage for further questions about what happened at that meeting. Etc., etc. etc. As I understand it, all that is fine.

What's not fine is to ask questions whose only purpose is to get someone to perjure herself. -- I mean, as I understand it, perjury traps, like entrapment generally, illegitimate searches, failures to inform suspects of their rights, and so on, are the sorts of things where the justice system basically says: we don't care whether you are guilty. We aren't going to allow that large stash of cocaine that the police found when they broke into your house, or that confession you gave an hour after you asked for an attorney and were ignored, or that lie you told under oath, to be used against you, not because you aren't guilty, which you probably are, but because we do not want to let the police/prosecutors/whoever profit from this sort of abuse of power.

Hey, if I know the other side's witness is going to lie on the stand, and I know that I'll be able to prove he's lied after he does so, you bet I'm going to ask the question. His lie is the 13th chime of the clock, calling into question all that has come before.

I don't have a background in 5th Amendment law, and therefore won't comment on the legal matters involved. But I think that there is a plausible argument that this could morph into an obstruction of justice inquiry or that, if Goodling previously made a statement to Congress -- whether under oath of otherwise -- she also may face liability under 18 USC 1001 if it's later alleged that the statement was untruthful -- or even materially incomplete. In other words, I wouldn't be so quick to dismiss the privilege claim. It may be inappropriate, but it is not obviously so.

Incidentally, here's 18 USC 1001, an insanely broad statute criminalizing lies to federal officials:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. (c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to— (1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.


CharleyCarp: this raises an interesting question. I think that in a trial, getting a witness for your opposition to commit perjury would almost by definition have a legitimate purpose, in terms of destroying the credibility of the other side generally. But then, in a trial you also have a judge ruling on whether or not a line of questioning is allowable, so there's much less room for abuse (in theory, at least).

Is a perjury trap something that primarily concerns grand jury/Congressional testimony, where there aren't the sorts of limits imposed by judges, and the prosecutors/Congress can ask what they want, more or less?

CharleyCarp: Hey, if I know the other side's witness is going to lie on the stand, and I know that I'll be able to prove he's lied after he does so, you bet I'm going to ask the question. His lie is the 13th chime of the clock, calling into question all that has come before.

Serious question: So does that, in your mind, justify Clinton being asked about his relationship with Lewinsky?

Incidentally, I realize that after writing "I don't have a background in 5th Amendment law, and therefore won't comment on the legal matters involved," my post proceded to do just that. What I meant to say was that my musing should be taken with a grain of salt.

Hey, if I know the other side's witness is going to lie on the stand, and I know that I'll be able to prove he's lied after he does so, you bet I'm going to ask the question. His lie is the 13th chime of the clock, calling into question all that has come before.

I agree with that; indeed, I've asked questions intended to provoke a lie from the witness so that I can impeach her on the stand. I note, however, that proving up the lie is foolhardy unless there's a clearly contrary statement in a document from the witness or under oath at the witnesses' deposition.

There also seems to be an attitude among some jurors that everyone lies in Court, such that even clear misstatements become forgivable. I'm curious whether Charlie -- who is a more experienced litigator than I -- has had a similar experience in his practice.

von: I don't in the least dismiss her claim to privilege. If she believes that what she says could incriminate her, of course she has the right to take the fifth. And I can easily see how she could have engaged in conduct that violates the law.

What I do dismiss is the argument her lawyer made on her behalf: that she's invoking the fifth because some of the Senators have allegedly already made up their minds, as evidenced by their statements that Gonzales said things to them that were not true, and this (somehow) places her in legal peril. I think that argument really is what Sandy Levinson says: absurd. (Though I'll remember it the next time I'm pulled over for speeding and the cop asks to see my license. "Officer, the fact that you pulled me over seems to indicate that you've already made up your mind.") (Luckily, I haven't been pulled over for speeding for years.)

I don't at all question her right to take the fifth. Just not for the stated reasons.

Speculation that I read somewhere yesterday (sorry, don’t remember where) was that she was angling for immunity. Once she has that she will essentially take the fall for everyone else involved.

With the caveat that IANAL, I don't see why it matters what Ms. Goodling gives as her reason for invoking her 5th Amendment rights. She could claim that the Flying Spaghetti Monster told her to do so in a vision. The right itself is (as far as I know) absolute.

I don't know if this current situation is a perjury trap or not, but I do remember hearing that term during the Clinton impeachment. And it seems a pretty good description of what they did to him.

Oh, sorry, I didn't see hilzoy's 9:38 comment before I hit "Post."

Jes: Charley can answer that, and I hope he does, but until he chimes in: Clinton's testimony was before a grand jury, right? I would think that the very large difference between grand jury testimony and trial testimony would be relevant here. The powers of a grand jury are very great, and they don't have a built-in check, like the judge in a trial.

Again: it's the legitimacy of the questions that seems to be the issue, and at trial, judges get to rule on that. In grand jury testimony, no one does.

But then, in a trial you also have a judge ruling on whether or not a line of questioning is allowable, so there's much less room for abuse (in theory, at least).

This depends very much on the judge.

Is a perjury trap something that primarily concerns grand jury/Congressional testimony, where there aren't the sorts of limits imposed by judges, and the prosecutors/Congress can ask what they want, more or less?

Again, I'm not an expert on the matter, but I really think that the "perjury trap" issue is a red herring. It's been raised because it's a way of casting Congress as inquisitors: it's a political talking point. The better legal arguments, IMHO, involve the possibility that the witness is already in jeopardy (e.g., under 18 USC 1001 or due to the possibility of an obstruction of justice investigation).

Hilzoy, having now read your 9:38 a.m. post, it appears that we largely agree. (See my 9:42 a.m. post, which makes a similar point.) I'd dissent only that I don't think that the perjury trap argument is illegitimate so much as not the best legal argument.

This is great stuff. Thanks to everyone.

This bothers me.

Speculation that I read somewhere yesterday (sorry, don’t remember where) was that she was angling for immunity. Once she has that she will essentially take the fall for everyone else involved.

It seems like (it should be) too obvious a ploy to work, but somehow I think it might. It's like a bug in the software. I don't know what can be done about it, but I do know that I don't like it. It's a way out for the crooked and mendacious in power (regardless of party, thank you, before the "it only bothers you when the other guys do it" crowd chimes in. I don't really have guys or other guys.)

Of course, you're going to have to restrict your questioning to relevant matter. And jurors aren't going to give you much credit for catching a witness out in a lie that doesn't fit the narrative of the case. IME, jurors don't think everyone is lying. They look at the documents, watch the faces, watch the lawyers' reactions, and get a pretty good idea what's going on.

I think lawyers questioning President Clinton in Jones were angling precisely for a credibility issue, and nothing more. Nothing about Lewinsky, and her pursuit of Clinton, really says anything about whether Clinton pursued Jones. Jones wasn't Clinton's subordinate in anything like the sense that Lewinsky was, and really I think it should have been excluded (on 403 grounds if not 401). That said, the judge ruled it relevant, within ground rules, and so he had to answer the question. Truthfully.

I may not be recalling correctly, but I believe that Clinton's grand jury testimony was not perjured or misleading, but that it was his deposition testimony that was at variance with the facts.

I don't believe that there is an absolte right to invoke the privilege, but that an invocation is reviewable. There are standards, and I don't believe 'Congress is filled with meanies' fits. That said, it may well be that Ms. Goodling is angling for immunity. I wouldn't expect her to accept responsibility that isn't hers, because I'd expect the immunity deal to require truthful testimony. And if she wants to say that Presidential appointees are fired at the instance of a 33 year old minor aide, and that the deputy AG and the AG himself make obviously misleading statements because she tells them to, it's not going to end the investigation. The OCS scenario, when the AG finally comes to testify, will be even more embarrassing/debilitating than the truth.

This perjury thing is a crock.

As any lawyer will tell you (and I am one), the best thing to do to avoid a perjury charge is (as Josh Marshall and others have said) NOT TO LIE.

The second best thing to do is to preface your answers with phrases like "To the best of my recollection....". If what follows that phrase turns out to be demonstrably false, you can't get nailed for perjury -- just faulty memory, which isn't a crime.

That said, it's quite possible that she has ALREADY committed perjury (or making false statements or something) -- perhaps to some internal DOJ investigation -- and telling the truth NOW to the committee would reveal those EARLIER lies. In THAT scenario, a 5th Amendment assertion might make sense.

I personally have no problem with her taking the Fifth. We live in a world where perception, not facts, count. And the general public perception is that anybody taking the Fifth has something to hide. Usually something illegal.

Forget what the lawyer is saying. The concept of perjury trap means little to the public at large. (And yes, I agree with von and others that the lawyer's explanation is a smoke screen.)


For the rabid right, there will be some tendency to see the Dems as having a political witchhunt, but not for the public at large.

I'm curious as to how the ObWi assembled host thinks about F. Lee Bailey's tactic to get Mark Furhman on the N word in relation to all this. Different? The same? Why?

So, in an actual trial, a defendant or witness can claim the 5th and the judge either says they have to answer or he lets them not answer.

If he requires them to answer, then later they might be tried for their crimes and they can use the fact that they had to incriminate themselves as a defense? Maybe get whole lines of evidence closed off that might have derived from the forced confession? Maybe get the whole trial put aside because of it?

But if they take the 5th and get away with it, there's no penalty, right? It isn't like after the trial is all over the judge determines that they were actually innocent and in no danger of prosecution, and so he sentences them for wrongly taking the 5th....

IANAL. Do I have this basicly right?

I have no idea how it goes in a grand jury, or with congress. Is anybody who knows willing to give the short version?

I wouldn't expect her to accept responsibility that isn't hers, because I'd expect the immunity deal to require truthful testimony.

If that's to say that her immunity would be limited to prosecution for past wrong-doings that would come to light as a result of her testimony, and would not protect her from perjury, that would solve my upthread problem. Thanks.

If a judge requires a witness to answer a question, then the witness has two choices: answer, or refuse to answer and risk contempt. The latter course will give a chance to raise the issue on appeal.

I think it would be exceptionally cheeky to prosecute someone for testimony given over a valid Fifth Amendment objection, and probably grounds for suppressing the statement (and all fruit from the tree). I haven't had a case on this, though, and so can't say for sure.

I did have a civil case where a witness in deposition refused to answer any questions at all, including his name, on Fifth Amendment grounds. The opposing party didn't do as good a job as he might have done at building a record for the kind of presumptions he wanted, but then the case settled, so we never played the thing out to the end.

von: agreed that "perjury trap" isn't at all a good legal argument, and is more of a political point-scoring device, in this case. That's partly why I wanted to figure out what it was, and then thought it might be worth explaining: as I said, I didn't see much to suggest that the people I'd seen using it understood what it was, and in the absence of understanding, I think it suggests both that the questioner is unfair (true, if a p.t. actually exists), but also that the perjured responder hasn't really done anything wrong. It wasn't real perjury, the thought seemed to be; it was just what happens when, all unawares, an innocent person falls into a perjury trap.

As I said in the post, I thought: huh? And precisely because this concept was (as far as I could tell) being used w/o understanding on non-legal blogs (and used with the assumption that everyone understands it on legal blogs, like Volokh), I thought: here is the tiny thing that I can do.

1) Lj, I don't what specifically you're talking about with Furman, but trying to impeach prosecution witnesses' credibility is totally legitimate and defense attorneys have reasonably wide leeway in doing so. If you can place them in a position where they either have to admit something they don't want to, or tell a verifiable lie, well then.

The distinctions with the grand jury "perjury trap" would be:
1) Bailey was trying to get his client off, not get Furman thrown in jail
2) Bailey's questions, if they were allowed by the judge, were presumably within legitimate functions of defense counsel to ask...

It's invasive to force someone to testify under oath, in the same way it's invasive to have someone go through your bedroom drawers. We all have things we would rather not admit--especially publicly, in court. To force people to either do so, or risk perjury charges or contempt, when it's NOT a relevant question in the course of a legitimate investigation or trial, is an abuse of power for the same sort of reason that searches without probable cause are abuses of power. You're not actually forced to commit perjury but you're trapped in a situation with no good options.

2) It's not true that you can invoke the 5th Amendment no matter what, because you can be forced to testify if you're not in danger of incriminating yourself (& none of the other privileges applies). If people could shut off all questioning by saying "I take the 5th" it would undermine that. So it has to be done question by question, and I think it's subject to some judicial scrutiny, though they're pretty liberal about it (as they should be).

The more I read about Goodling, the more it seems like she may have legitimate grounds for taking the Fifth on a lot of questions about her past conduct, but the letter explaining her decision is 90% blowing smoke for PR reasons.

atrios has up part of today's hearing before Waxman's committee about the GSA's probable violation of the Hatch Act. The GSA Admninstrator hasn't taken the fifth but I would bet she'll be having a fifth tonight after that performance. The only way to avoid testifying is developing early Alzheimer's.

Thanks Katherine, that makes it a bit clearer. I'm not sure what I'm getting at either except the sneaking feeling that the idea that a defense lawyer should take every opportunity to undermine the credibility of opposing witnesses is now the norm for everything.

from the Levinson quote:

"can any private citizen invoke the 'I really
don't like you people and therefore I'm taking the Fifth defense'."

Yes, Monica Goodling and all of the other cadres and apparatchiks now embedded in and sabotaging every single agency of the U.S. Government can.

Why, because she graduated from Pat Robertson's Regent University. Because these ... foreign agents ... do not answer to the laws of the United States.

There has been a slow-motion corporate-crypto religious coup since @1994, planned way before that. Remarkable, that such low-quality, barely competent folks like Bush, Gonzalez, Goodling and all of their trailer park/Enron sponsers turn out to so pathetic when they are finally called on the carpet and when they've gotten away for so long with their subversion of EVERYTHING.

They must have emitted some somnolent gas into the Earth's atmosphere when they landed in Ronald Reagan's alien transport those many years ago.

Baby. Bath water. Throw.

Bring the troops home and deploy them outside of all Federal agency buildings to check for the tentacles, acid, and other tell-tale signs of the aliens inside the suits and tassled loafers.

Fumigate the U.S. Government. Check voting registrations of all government employees and fire all Republicans, with the exception of John Cole, Slart, Von, OCSteve, Andrew Olmsted, Sebastian and a few others should they wish to become public servants. [(though we need to keep them all under strict observation ;))]

We'll keep Charles Bird around for recharging the argumentative adrenaline.

This thing living inside the old Republican Party serves something or someone, but not the United States of America.

"Baby. Bath water. Throw."

My baby likes to kick the bath water, but ymmv.

His latest trick is to push the nursery door closed and then park himself behind it.

This thing living inside the old Republican Party serves something or someone, but not the United States of America.

Apparently its "some gigantic monster -- big, green, horny-headed, all kinds of horns coming out, big, aggressive monster."

DaveC. can stay, too, despite his horniness.

John: Thanks for the vote of confidence but a public servant? No way dude. The hours are long, the task is thankless, and the pay sucks. Other than world domination it has little to offer…

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Whatnot


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