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Bush's Monica Problem

By Dan Froomkin
Special to washingtonpost.com
Tuesday, March 27, 2007 11:48 AM

Will another presidency be tripped up by another Monica?

As suspicions about the White House role in the firings of eight U.S. attorneys last year continue to deepen, one of the people who could shed light on what happened -- Monica Goodling, the Justice Department's White House liaison -- has suddenly decided to clam up, invoking her Fifth Amendment right against self-incrimination.

Juries in criminal cases are sternly lectured not to assume guilt when a defendant takes the Fifth. It is, after all, a Constitutional right.

But when a fairly minor player in what had heretofore not been considered a criminal investigation suddenly admits that she faces legal jeopardy if she tells the truth to a Congressional panel? Well, in that case, wild speculation is an inevitable and appropriate reaction.

For one, it's not at all clear what she's trying to say. Undeniably, if she chose to lie to the panel, she could face perjury charges. Her recourse, therefore, would appear to be to tell the truth.

So is she saying that if she told the truth, she would have to admit a crime? What crime?

Or is she saying something else: That she'd have to admit someone else's criminal behavior? Well, that's not something you can take the Fifth to avoid. Sorry.

Or is she just afraid of being grilled by an antagonistic bunch of congressmen? Well, that's not something you can take the Fifth to avoid either.

In my column yesterday, I wrote that Attorney General Alberto Gonzales is almost certainly still getting his marching orders directly from the West Wing. I speculated about which Justice and/or White House aides were charged with delivering those orders. It's widely known that the White House has in many cases turned over the micromanagement of Cabinet officials to untested youngsters whose paramount qualification is that they follow orders.

Now it looks like the 33-year-old Goodling's terrified, whining refusal to own up to what she did may end up exposing one of the weaknesses of relying on such people. When the going gets tough, they can't necessarily be trusted to either stand up to pressure -- or take the fall. Instead, they panic.

The Coverage

Dan Eggen writes in The Washington Post: "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, who was also Justice's liaison to the White House, and her lawyers alleged that Democratic lawmakers have already concluded that improper motives were at play in Justice's dismissal of eight U.S. attorneys last year. Goodling also pointed to indications that Deputy Attorney General Paul J. McNulty blames her and others for not fully briefing him, leading to inaccurate testimony to Congress. . . .

"The decision means a senior aide to the nation's top law enforcement official is in the remarkable position of refusing to testify for fear of implicating herself in a crime. Her lawyer portrays the move as strategic and says she has done nothing wrong."

Charlie Gibson reported for ABC News last night that "her refusal to answer questions would raise questions in itself." Pierre Thomas then explained: "It's extremely rare, if not unheard of, for a senior Justice Department official to invoke the Fifth Amendment against self-incrimination. Now Monica Goodling is a very senior official. She is the liaison to the White House, counsel to the Attorney General. And that puts her right in the center of this controversy over the firing of those U.S. Attorneys."

Margaret Talev, Ron Hutcheson and Marisa Taylor write for McClatchy Newspapers: "The decision by Monica Goodling to protect herself against self-incrimination marks the first instance in which a Bush administration appointee involved in the probe has signaled concerns about possible criminal repercussions. . . .

"Goodling's announcement came as the Senate Judiciary Committee prepares to call Gonzales' former chief of staff, Kyle Sampson, to testify later this week. Sampson's testimony on Thursday could be pivotal as lawmakers seek answers to the depth of Gonzales' and the White House's involvement and the reasons behind the personnel changes.

"Sampson's attorney, Brad Berenson, said Monday that his client doesn't plan to invoke the Fifth Amendment or seek immunity. 'Hearings in a highly politicized environment like this can sometimes become a game of gotcha, but Kyle has decided to trust the Congress and the process,' Berenson said."

Ron Hutcheson writes for McClatchy Newspapers that Goodling was "a frequent figure in department e-mails released so far as part of the congressional investigation into the firings and hirings of U.S. attorneys.

"Goodling, 33, is a 1995 graduate Messiah College in Grantham, Pa., an institution that describes itself as 'committed to embracing an evangelical spirit.'

"She received her law degree at Regent University in Virginia Beach, Va. Regent, founded by Christian broadcaster Pat Robertson, says its mission is 'to produce Christian leaders who will make a difference, who will change the world.'

"E-mails show that Goodling was involved in planning the dismissals and in later efforts to limit the negative reaction. As the Justice Department's liaison to the White House, she could shed light on the extent of White House involvement in the dismissals.

"Goodling took a leading role in making sure that Tim Griffin, a protege of presidential adviser Karl Rove, replaced H.E. 'Bud' Cummins as the U.S. attorney in Arkansas. Documents released to Congress include communications between Goodling and Scott Jennings, Rove's deputy."

David Johnston and Carl Hulse write in the New York Times: "A Justice Department official said that senior agency officials were 'concerned' about Ms. Goodling's refusal to testify because 'we had agreed to make Department of Justice officials available to the committee.' The official said Ms. Goodling, who is on leave, had not obtained advance approval for her decision."

President Bush last week promised that "the Attorney General and his key staff will testify before the relevant congressional committees to explain how the decision was made and for what reasons."

But the White House's initial reaction to Goodling's decision last night did not indicate that they were troubled. "It is unfortunate that a public servant no longer feels comfortable that they will be treated fairly in testimony in front of Congress," spokeswoman Dana Perino said in an e-mail to reporters.

Here is Senator Patrick Leahy's response to the letter: "The American people are left to wonder what conduct is at the base of Ms. Goodling's concern that she may incriminate herself in connection with criminal charges if she appears before the Committee under oath."

Goodling's Argument

Here is the full text of the statement and letters from Goodling's attorney, John M. Dowd.

He argues that "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."

He even goes so far as to challenge the legitimacy of the hearings, which he suggests are being held for political purposes.

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.

Is She Even Entitled to the Fifth?

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

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

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

Legal blogger Orin Kerr writes: "The Fifth Amendment privilege is available if the witness has reasonable ground to believe that her testimony will be used against her to prove an element of a crime. What crime might Goodling have committed? I'm also puzzled by the comparison to the Libby case. Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity. Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that's not a valid basis for the privilege. . . .

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

Opinion Watch

The New York Times editorial board writes: "The news that Monica Goodling, counsel to the attorney general and liaison to the White House, is invoking her Fifth Amendment right against self-incrimination takes the United States attorney scandal to a new level. . . .

"As the liaison between the White House and the Justice Department, Ms. Goodling seems to have been squarely in the middle of what appears to have been improper directions from the White House to politicize the hiring and firing of United States attorneys. Mr. Gonzales has insisted the eight prosecutors were let go for poor performance, and that the dismissals are an 'overblown personnel matter.' But Ms. Goodling's decision to exercise her Fifth Amendment rights suggests that she, at least, believes crimes may have been committed."

Gonzales Watch

Richard B. Schmitt writes in the Los Angeles Times: "Saying he wanted to be 'more precise' about what he had done, Atty. Gen. Alberto R. Gonzales acknowledged Monday that he had a role in approving an aide's recommendation to dismiss several U.S. attorneys last year, but he denied that he was involved in the process of identifying which individual prosecutors should be replaced.

"Gonzales' remarks, in an interview with NBC News, were his first seeking to reconcile his public statements about his involvement in the firings with internal e-mails released by the Justice Department on Friday."

Here is the video and transcript of the entire interview, conducted by a deeply solicitous Pete Williams (first question: "Mr. Attorney General, what is it that you would like people to know about this controversy?")

Gonzales tap-dances around all the central issues, insisting that he's got nothing to hide -- at least as far as he recalls.

In fact, the attorney general would have you believe that he was not involved in any discussions of why the attorneys were fired -- but nevertheless is completely confident that he decided to fire them for legitimate reasons. Why the confidence? Because there's no way he would ever have done so for inappropriate reasons -- and so far, he is eager to point out, there's no documentary evidence definitely proving the contrary.

At the same time, Gonzales left wiggle room all over the place.

"I wasn't involved in the deliberations as to whether or not a particular United States Attorney should or should not be asked to resign," he said, then quickly added: "I don't recall being involved."

And he set the stage for some possible future finger-pointing at his staff: "If I find out that, in fact, any of these decisions were motivated, the recommendations to me were motivated for improper reasons to interfere with the public corruption case, there will be swift and -- there will be swift and decisive action. I can assure you that."

As for his interaction with the president, Gonzales was full of vague qualifications:

"PETE WILLIAMS: You mentioned the conversations with the president. What role did they play in deciding which US Attorneys would be on the list?

"ATTORNEY GENERAL GONZALES: As far as I know, Pete, they did not play a role in adding names or taking off names."

What Sampson Will Say

Chitra Ragavan writes for U.S. News: "When Attorney General Alberto Gonzales's former chief of staff, D. Kyle Sampson, testifies before the Senate Judiciary Committee this Thursday about the controversial firings of eight U.S. attorneys . . . [he] will set off some fireworks by contradicting a key assurance that Gonzales made to Congress and the American public last Tuesday that he was not in the loop during the long deliberations leading up to the firings. . . .

"Sampson will testify that the Attorney General not only discussed the idea while he was still White House counsel and signed off at the end, but also was 'aware of the arc of the whole process' in between, says this source. 'The idea that there were no discussions on this overall issue,' says the source, 'the Attorney General could not have meant to say that.' . . .

"Sampson is likely to testify that although he exchanged E-mails and had discussions with then-White House counsel Harriet Miers and her deputy William Kelley, what happened 'behind the curtains,' in the White House, was largely invisible to him."

How McNulty Diverged From His Script

Jan Crawford Greenburg writes for ABC News: "The firestorm over the fired U.S. attorneys was sparked last month when a top Justice Department official ignored guidance from the White House and rejected advice from senior administration lawyers over his testimony before the Senate Judiciary Committee.

"The official, Deputy Attorney General Paul McNulty, ignored White House Counsel Harriet Miers and senior lawyers in the Justice Department when he told the committee last month of specific reasons why the administration fired seven U.S. attorneys -- and appeared to acknowledge for the first time that politics was behind one dismissal. McNulty's testimony directly conflicted with the approach Miers advised, according to an unreleased internal White House e-mail described to ABC News. According to that e-mail, sources said, Miers said the administration should take the firm position that it would not comment on personnel issues."

Voter Fraud Watch

Jeanne Cummings writes in the Politico about the Republican obsession with voter fraud. She describes how before the 2004 election: "Republican operatives tucked thick folders of newspaper clippings and other fraud tips under their arms and pitched to reporters their claims that the Democrats' registration program would lead to rampant voter fraud. Their passion was clear, but their evidence was slim, consisting mostly of isolated incidents of voter registration irregularities that were handled by local police or election officials.

"What wasn't mentioned in those conversations with reporters was a Republican National Committee strategy, already underway, to work with state parties to identify and challenge questionable voters at the polling precincts. Among those working at the RNC was Tim Griffin, the former Karl Rove aide who recently replaced fired U.S. attorney Bud Cummins. Then, with the vast federal law enforcement community acting as the new sheriff, Republicans hoped to pocket the evidence they longed for: a string of high-profile investigations and convictions.

"Failure of some U.S. attorneys to pursue the final plank in that strategy now appears to have helped trigger an internal debate over whether to fire all or some of them, administration comments and e-mails suggest."

Cummings concludes: "The events surrounding the firing of the U.S. attorneys illustrate how deeply the Bush administration has laced political strategies with governing decisions. Rove, the president's political and policy adviser, represents the very embodiment of the Bush approach."

Poll Watch

Susan Page writes in USA Today: "Americans overwhelmingly support a congressional investigation into White House involvement in the firing of eight U.S. attorneys, and they say President Bush and his aides should answer questions about it without invoking executive privilege.

"In a USA TODAY/Gallup Poll taken Friday-Sunday, respondents said by nearly 3-to-1 that Congress should issue subpoenas to force White House officials to testify. . . .

"The poll finds little sympathy for the administration's claim that White House aides shouldn't have to testify to ensure that a president gets candid advice. By 68%-26%, those surveyed say the president should drop the claim of executive privilege in this case."

Here are the complete results.

E-mail Watch

R. Jeffrey Smith writes in The Washington Post: "A Democratic House committee chairman yesterday told the Republican National Committee and the Bush-Cheney '04 campaign to retain copies of all e-mails sent or received by White House officials using e-mail accounts under their control, raising the political stakes in the congressional inquiry into U.S. attorneys' firings.

"Rep. Henry A. Waxman (D-Calif.) said his broadly written request was based on evidence that White House officials -- particularly aides to top political adviser Karl Rove -- have used their politically related e-mail accounts to hide the conduct of official business regarding the prosecutor firings and other matters being investigated by Congress."

For background, see the "E-mail Watch" section of yesterday's column.

Time for a Special Counsel?

Neil Katyal writes in a New York Times op-ed: "Today, the only way to get to the bottom of the United States attorney scandal -- which involved the administration's firing of nearly 10 percent of America's top prosecutors -- is to ...appoint a special prosecutor."

Tony Snow's Terrible News

Peter Baker writes in The Washington Post with the sad news: "White House press secretary Tony Snow, who has become the face of the Bush presidency over the last year, has cancer again.

"Snow's deputy, Dana M. Perino, broke into tears at an off-camera briefing this morning as she announced that the cancer has spread to his liver. Doctors discovered it when they operated on Snow on Monday to remove a small growth that had developed in his lower abdomen.

"Snow, 51, who underwent surgery and months of chemotherapy for colon cancer two years ago, plans once again to 'go after it as aggressively' as he can, Perino said, but it was unclear when or whether he would be able to return to work."

Baker was also taking questions about Snow Live Online today.

In a brief Rose Garden statement, Bush said: "His attitude is, one, that he is not going to let this whip him, and he's upbeat. My attitude is, is that we need to pray for him, and for his family. . . . I'm looking forward to the day that he comes back to the White House and briefs the press corps on the decisions that I'm making and why I'm making them."

Cover-Up Watch

Elana Schor writes in The Hill that "four senior Senate Democrats are expanding their probe of the internal discussions that led President Bush to deny security clearances to Justice officials investigating his administration's warrantless surveillance program."

Frankel on Libby and Journalism

Former New York Times executive editor Max Frankel weighed in this weekend with a major retrospective of the Scooter Libby trial and Washington journalism in the New York Times Magazine. He concludes "that the compelled testimony about reporters and their sources [will] end up doing more damage than even the reckless violation of a C.I.A. agent's cover. For given the cult of secrecy that enveloped our government during the cold war and the hoarding of information that always attends the lust for power, a free, unregulated and unpunished flow of leaks remains essential to the sophisticated reporting of diplomatic and military affairs, a safeguard of our democracy. . . .

"It may sound cynical to conclude that tolerating abusive leaks by government is the price that society has to pay for the benefit of receiving essential leaks about government. But that awkward condition has long served to protect the most vital secrets while dislodging the many the public deserves to know."

In fact, Frankel writes, even abusive leaks can lead to good journalism: "Most reporters do not just lazily regurgitate such leaks; they use them as wedges to pry out other secrets. I remember once being shown the draft of a U.S. government 'white paper' documenting the perfidies of the North Vietnam regime; a few more interviews found the news not in those accusations but in the fact that they were being assembled to justify the start of intensive bombing of that country. A few more questions following Libby's leak from the N.I.E. would have exposed it as a deeply flawed analysis, a cut-and-paste collection of stale reports."

But liberal blogger Brad DeLong takes exception to Frankel's argument, pointing out that "most reporters to whom people like Scooter Libby leak do lazily regurgitate such leaks, and they certainly do not use them to pry out other secrets. If Scooter Libby had thought there was any chance that Judy Miller would have used his leak of the N.I.E. to expose it as deeply flawed, Scooter Libby would have kept his mouth shut. Only confidence that the reporter will be a complaisant tool of the source's purposes induces the leak in the first place.

"Reportorial laziness on the part of Judy Miller has nothing to do with it. Reportorial ethics has everything to do with it. Do reporters view their primary task as helping their sources to misinform the public? Or do reporters view their primary task as informing citizens? . . .

"A more honest commentator than Frankel would have written differently: would have written that the long-run survival of journalistic legal privileges depends on the existence of a community of journalists that polices itself, and that rewards journalists who inform the public and punishes those who kneel to their political masters. Frankel had a chance to engage in this task of self-policing this morning. He failed to do it."

Pardon Watch

George Lardner Jr. writes in a New York Times op-ed: "All the talk about a potential presidential pardon for I. Lewis Libby Jr. has infuriated critics of the Bush administration; many feel that a Libby pardon would amount to a whitewashing of the White House's actions relating to Valerie Plame's identity.

"Perhaps they should take heart: Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush's legacy.

"Here's why: If Mr. Libby were to accept a traditional presidential pardon - a 'full and unconditional' grant of clemency - he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I. Perhaps it shouldn't be that way, but it is - no ifs, ands or buts about it. So, while many who have been pardoned like to claim they have been 'exonerated,' that simply isn't so."

Wilson's Fantasy

The Associated Press reports from Des Moines, where former ambassador Joseph Wilson talked about the civil suit he and his wife, Valerie Plame, have filed against administration officials who blew her covert status.

"Wilson said he hopes the civil suit brings more information to light about the government's role in the leak. . . .

"'My fantasy is to Web cast Dick Cheney's deposition,' Wilson said to cheers and applause."

Where's the President?

Dana Milbank writes in The Washington Post: " An imperiled attorney general, an unpopular war, a hung-over housing market and a presidential approval level of 32 percent: White House officials took all that into consideration and made their decision.

"They would have President Bush do another event promoting cellulosic ethanol. . . .

"It was another milepost in the shriveling of a presidency."

Live Online

I'll be Live Online tomorrow at 1 p.m. ET. Come join the fun.

Cartoon Watch

Tony Auth on the final four; John Sherffius on a loyal Bushie.; Jeff Danziger on the true target.; Ben Sargent on the true master.

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