Is This Why Goodling Invoked The Fifth Amendment?

[kpete]

Is This Why Goodling Invoked The Fifth Amendment?
By Big Tent Democrat, Section Law Related
Posted on Sat Apr 28, 2007

Anonymous Liberal has unearthed what appears to be an incriminating e-mail in which Monica Goodling instructed DOJ personnel to destroy documents that were clearly pertinent to an ongoing Congressional investigation. The e-mail, dated February 12, 2007, states in relevant part:

These are new and updated USA documents which can be used with the media or friendlies. Please delete prior versions. . .

Why could this be a criminal situation? Because of the federal obstruction statute.
This article provides a nice background on the subject:
http://www.mass.gov/obcbbo/eve.htm

The federal crime of obstruction of justice is defined by 18 U.S.C. § 1503 to include conduct that, among other things, corruptly endeavors to obstruct or impede the due administration of justice. To sustain its burden of proof, the government must prove that there was pending judicial proceeding, that the defendant knew this proceeding was pending, and that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice.

In applying the obstruction of justice statute to issues of destruction of documents, federal courts generally have not required that a subpoena have issued. Rather, it is sufficient for an obstruction conviction that the defendant knew that a grand jury was investigating possible violations of federal law and intentionally caused destruction of the incriminating document. U.S. v. Fineman, 434 F. Supp 197 (E.D.Pa 1977).

. . . In addition, the Sarbanes-Oxley Act of 2002 has expanded the federal law of obstruction by adding new sections to 18 U.S.C. § 1512 and enacting a new statute, 18 U.S.C. § 1519, creating additional crimes relating to alteration, destruction, mutilation or concealment of records, documents, or objects. Section 1512© requires acting corruptly with intent to impair the item’s integrity or availability for use in “official proceedings,” defined by 18 U.S.C. 1515 to include proceedings before federal courts, agencies, Congress, and regulatory proceedings involving the insurance business. This statute is particularly striking in providing, in subsection (f), that an official proceeding need not be pending or about to be instituted at the time of the offense and that the document need not be admissible in evidence or free of a claim of privilege.

........ Goodling has real concerns about criminal prosecution for her actions.

http://www.talkleft.com/story/2007/4/28/232250/039

[Lone_Star_Dem]

1. I'm not clear if invoking the fifth would protect her from this.

While it does mean she cannot be forced to testify to anything that might incriminate her, I don't think there's a clause there in regards to protecting her from other evidence that will prove guilt of a crime.

[ChairmanAgnostic]

3. it makes me wonder

is this all a set up, throwing her to the wolves while protecting Rove et al?

and what about the e-mails instructing her to exchange the old docs with the new and improved ones?

[TechBear_Seattle]

5. I believe you are right. n/t

[DefenseLawyer]

9. It wouldn't absolve her

from being prosecuted based on that other evidence, but if she felt that she would be questioned about this or other matters that could potentially be considered criminal, she would certainly choose to invoke the 5th rather than testify, where her choices presumably would be to confess or to lie. But, she would have to have a good faith basis for invoking the 5th, it can't be used simply because a person doesn't want to "get involved". There has to be a reasonable possibility that answering questions about the subject matter would subject her to criminal liability. Of course if she is granted use immunity, it is a moot point anyway.

[Lone_Star_Dem]

12. Thank you for clearing that up for me

I greatly appreciate it.

[hootinholler]

13. But doesn't she still have to testify to invoke the 5th?

Doesn't she have to hear the question and then not answer, invoking the fifth?

-Hoot

[DefenseLawyer]

14. It depends

I can't speak to how the rules of testifying before congress work, but generally speaking, a witness can't invoke a "blanket" 5th amendment refusal (although obviously one can as a defendant). However when a witness invokes the Fifth Amendment, the trial court can excuse the witness from testifying where he could legitimately invoke the fifth about the entire subject matter of his potential testimony. Also, the court may strike all or part of the witness' direct testimony if he later tries to take the fifth during cross examination. In most courts, where a witness is being called about a specific thing, and the witness can properly assert the fifth about that specific thing, the witness may not be called solely for the purpose of showing the jury that the witness will assert the Fifth Amendment. Of course Congress doesn't really have the same concerns about tainting a jury.

[ChairmanAgnostic]

2. kpete, the laws don't apply to good little regent U girls simply following orders

the laws only apply to independents, liberals, democrats and anyone who opposes these folks.

great catch on the e-mail and obstruction.

[TechBear_Seattle]

4. I don't think she invoked it; it was imposed on her

As far as I can tell, she did not ask for Fifth Amendment immunity; it was imposed on her in order to force her unwilling testimony. Imagine something like this:

Judge: Tell us what you know.

Goodling: I can not testify because I might incriminate myself.

Judge: I hearby give you immunity from prosecution on any testimony you give which is related the matter at hand. Tell us what you know.

Goodling: Uh, Fifth Amend....

Judge: No longer applies. Now tell the court what you know or go to prison for contempt.

[DefenseLawyer]

16. That is basically correct

Although in a criminal prosecution setting it is the prosecutor that can grant a witness immunity, not the judge.

[LiberalFighter]

6. Violation of Presidential Records law too????

[Igel]

7. It rather depends on unstated details, doesn't it?

With Berger, the claim was he stole and destroyed copies, therefore there was absolutely no harm done.

If there are backups of hard drives from which the documents that were deleted, or if they were archived, no harm done. The documents went through the e-mail system; they were produced by Goodling and possibly archived from *her* computer. Personally, I can't tell if she's saying to delete *all* copies (including from archives and backups) or just telling people that they shouldn't have prior versions of the talking-points on their hard drives....

Bedore we say that somebody's violated the law, it's best to make sure that they did.

[LiberalFighter]

8. I suppose they don't use the protocol of having revision dates

included on documents like states do with forms.

[autorank]

10. K&R Ms. pete

k, I thinnk she won't be the commencement speaker at Regent.

[TexasThoughtCriminal]

11. "media or friendlies"... Isn't that redudant?

:sarcasm:

[camero]

15. Now we know what kind of Chrisitan takes the fifth.

A corrupt one.

[SheWhoMustBeObeyed]

17. Here's the bigger reason why:

-snip-

We were all treated to Gonzales' historical display of bumbling amnesia before the Senate Judiciary Committee a couple of weeks ago. Now we learn that the second in command, Paul McNulty, wasn't really in the loop, either. From The Washington Post:

Deputy Attorney General Paul J. McNulty told congressional investigators that he had limited involvement in the firing last year of eight U.S. attorneys and that he did not choose any to be removed, congressional aides familiar with his statements said yesterday.

McNulty said he provided erroneous testimony to Congress in February because he had not been informed that Attorney General Alberto R. Gonzales and his aides had been working with the White House on the firings for nearly two years, the congressional aides said.

Put this together with the news yesterday that McNulty, along with other members of the senior leadership in the department, had been cut out of the hiring and firing process for junior political appointees, and it's clear that he really didn't have much to do with running the place. From all evidence, that responsibility fell to Kyle Sampson and Monica Goodling, two young aides who acted as little more than proxies for the White House.

http://www.tpmmuckraker.com/archives/003124.php