NationStates Jolt Archive

A department of Justice attorney has pled the 5th amendment and refused to testify in front of Congress.

For those who do not know the 5th amendment allows for an individual to assert his or her right not to incriminate his/herself. An individual can not be compelled to testify if that testimony may result in criminal charges against that individual.

Take a look here (http://www.cnn.com/2007/POLITICS/03/27/fired.attorneys/index.html)

I did my hair today.

im glad you brought this up. im wondering where the legal line is on this.

as i understand the 5th ammendment its that you cant be called on to testify against yourself. so that if this lawyer "may have" broken the law in this us attny thing (how should would have done so is a mystery to me) then to call her to testify is to compell her to tell the truth about something that can then be charged against her.

the impression i had from the news reports is that she is suggesting that she is pleading the 5th because she doesnt want to be "scootered" by having her testimony twisted into perjury in some congressional witch hunt. it seems to me that this cant possibly be protected under the 5th ammendment. you cant claim the privilege to not be able to lie or twist the truth under oath which perjured testimony would end up being a crime in and of itself.

am i off base? is that why she is saying she'll plead the fifth?

and what the FUCK is going on in this case? why are they consistently lying about something they have no need to lie about? i find it all baffling.

Is this something to do with the Attorney General firing a load of attorneys for no reason?

So, the same group that wants to abolish the Constitution now uses it? Cute.

im glad you brought this up. im wondering where the legal line is on this.

as i understand the 5th ammendment its that you cant be called on to testify against yourself. so that if this lawyer "may have" broken the law in this us attny thing (how should would have done so is a mystery to me) then to call her to testify is to compell her to tell the truth about something that can then be charged against her.

the impression i had from the news reports is that she is suggesting that she is pleading the 5th because she doesnt want to be "scootered" by having her testimony twisted into perjury in some congressional witch hunt. it seems to me that this cant possibly be protected under the 5th ammendment. you cant claim the privilege to not be able to lie or twist the truth under oath which perjured testimony would end up being a crime in and of itself.

am i off base? is that why she is saying she'll plead the fifth?

and what the FUCK is going on in this case? why are they consistently lying about something they have no need to lie about? i find it all baffling.
The suggestion yesterday when she announced she was going to do this is that she's already in some legal hot water. McNulty, the first guy accused of lying to Congress on this matter has said that he was given false information by Goodling, who took the 5th Amendment. Apparently, causing someone else to lie to Congress is a crime as well, so she could be facing some legal jeopardy if she testified and answered those questions.

im glad you brought this up. im wondering where the legal line is on this.

as i understand the 5th ammendment its that you cant be called on to testify against yourself. so that if this lawyer "may have" broken the law in this us attny thing (how should would have done so is a mystery to me) then to call her to testify is to compell her to tell the truth about something that can then be charged against her.

the impression i had from the news reports is that she is suggesting that she is pleading the 5th because she doesnt want to be "scootered" by having her testimony twisted into perjury in some congressional witch hunt. it seems to me that this cant possibly be protected under the 5th ammendment. you cant claim the privilege to not be able to lie or twist the truth under oath which perjured testimony would end up being a crime in and of itself.

am i off base? is that why she is saying she'll plead the fifth?

and what the FUCK is going on in this case? why are they consistently lying about something they have no need to lie about? i find it all baffling.

What you raise is a fair concern. This move has a lot of constitutional scholars and attorneys (including myself) going ".....buh?"

Here's the low down dirty of it. You can plead the 5th if you believe your testimony would lead to you being charged with a crime. But the DoJ has asserted no crime was committed, so one questions precisely what crime she does not wish to reveal that she participated in for which she would assert her rights.

You can't go "I don't want to tell you, I plead the 5th". Fifth amendment only works to prevent you from testifying if you believe your testimony can be used against you in a criminal matter.

Now, she is saying the testimony to be used against her could be for a perjury charge. This is troublesome in two fashions.

First...this would mean she's asserting 5th amendment rights to prevent her from being charged with lies she would otherwise intend to tell under oath. This becomes an issue because of just that, can the 5th amendment be used ot shield you from giving testimony if you intend to lie on that testimony, thus commiting a crime?

The second problem is that it's forward looking, instead of backwards looking. The 5th amendment has been used universally as a shield to prevent you from admitting to crimes you had already committed. She is using it as a sword, to prevent them from putting her in the position to lie.

In other words, the 5th amendment is intended to prevent you from being forced to testify about crimes you have committed. It was NOT intended, as far as anyone knows, to allow you to escape giving testimony which would be the crime itself. Big difference here.

I can't be compelled to testify about a crime I have committed. It is highly questionable whether you can prevent being forced to give testimony that in and of itself would be a crime (I hope this distinction is making sense).

The final argument is "well whatever I say is going to be twisted so I don't want to say anything" except...well, the 5th doesn't work that way. There are a slew of OTHER rights, namely 4th, 6th, and 14th that protect you from that, but the 5th doesn't do it.

The way the 5th amendment would work for perjury is if you gave testimony that was perjury, were charged with perjury, and at your perjury trial asked if you committed that perjury, THEN you can plead the 5th.

But to plead the 5th because what you would say might constitute a crime in and of itself...the 5th amendment has never been applied as a forward thinking remedy, only one post facto.

So the only legitimate reason she can plead the 5th is if her testimony might lead to charges against her for crimes she has committed and admitted to in her testimony.

Bot congress can simply grant immunity for any of that, and her right to take the 5th goes *poof*

Apparently, causing someone else to lie to Congress is a crime as well

Yeah, it's subornation of perjury.

The suggestion yesterday when she announced she was going to do this is that she's already in some legal hot water. McNulty, the first guy accused of lying to Congress on this matter has said that he was given false information by Goodling, who took the 5th Amendment. Apparently, causing someone else to lie to Congress is a crime as well, so she could be facing some legal jeopardy if she testified and answered those questions.

ok as long as she is pleading the 5th on the basis of not giving actual testimony that could be used against her, FINE

but

isnt just a teeny tiny bit scandalous to have anyone in the justice department needing to plead the 5th? i understand that it is pretty rare.

got any insight into why everyone feels the need to lie about something that probably doesnt much need to be lied about?

and more to the point, how long will alberto gonzales be attorney general?

and more importantly yet, given bush's track record of lousy attorneys general, how will he find someone worse at the job than ashcroft and gonzales? there are hundreds of republicans who are well qualified for the job, you know he will skip over all of them to choose some hack who talks in small enough words for bush to understand.

What you raise is a fair concern. This move has a lot of constitutional scholars and attorneys (including myself) going ".....buh?"



that was pretty much my own (admittedly limited) legal analysis. it left the impression that she was saying that telling the truth was so foreign to her that just asking her to testify would put her in legal jeopardy.

or that there is someting MUCH worse hiding in the background that the justice department and whitehouse are frantic to keep hidden. i cant imagine what that might be but it sure is the impression they are giving off.

soooo....

does this mean that her pre-emptive declaration of the 5th is her way of offering herself up as a source as long as they give her immunity?

ok as long as she is pleading the 5th on the basis of not giving actual testimony that could be used against her, FINE

but

isnt just a teeny tiny bit scandalous to have anyone in the justice department needing to plead the 5th? i understand that it is pretty rare.

got any insight into why everyone feels the need to lie about something that probably doesnt much need to be lied about?
Because it's SOP for them? Of course, there is the possibility that they did need to cover their asses--more than one of these fired US Attorneys was working on corruption cases that got close to the White House, so maybe there was some ass-covering going on.

and more to the point, how long will alberto gonzales be attorney general?

and more importantly yet, given bush's track record of lousy attorneys general, how will he find someone worse at the job than ashcroft and gonzales? there are hundreds of republicans who are well qualified for the job, you know he will skip over all of them to choose some hack who talks in small enough words for bush to understand.

I used to think you couldn't find anyone worse than Ashcroft, and then we got Gonzales. At this point, I fully expect we'll see Dan Hagen step out of the Godfather movies and sign on as AG.

Damned good move on her part. We don't need anyone else getting the Scooter Libby treatment because they have some slight conflicts in their statements. Lying under oath is different than having a bad memory, unless you belong to the Bush Administration. Then, of course, you're presumed guilty and taking the fifth is just further proof of it.

Damned good move on her part. We don't need anyone else getting the Scooter Libby treatment because they have some slight conflicts in their statements. Lying under oath is different than having a bad memory, unless you belong to the Bush Administration. Then, of course, you're presumed guilty and taking the fifth is just further proof of it.

the 5th ammendment doesnt protect you against crimes you might commit while testifying.

the 5th ammendment doesnt protect you against crimes you might commit while testifying.

You're doing nuance. Conservatives don't do nuance, remember? ;)

A department of Justice attorney has pled the 5th amendment and refused to testify in front of Congress.

For those who do not know the 5th amendment allows for an individual to assert his or her right not to incriminate his/herself. An individual can not be compelled to testify if that testimony may result in criminal charges against that individual.

Take a look here (http://www.cnn.com/2007/POLITICS/03/27/fired.attorneys/index.html)

Just as I predicted. I am not surprised by this at all.

the 5th ammendment doesnt protect you against crimes you might commit while testifying.
It's a heck of a lot better than answering with testimony that can be used later. I don't think you understand that this isn't a blanket invocation. It's invoked at each question.

It's a heck of a lot better than answering with testimony that can be used later. I don't think you understand that this isn't a blanket invocation. It's invoked at each question.

youre still not allowed to use it as a defense against lying on the stand or getting charged with lying on the stand.

i very much dislike the practice of ending up charging people with the "bullshit charges" instead of the bigger wrong doing. when they cant prove the bigger charge--in libby's case the outing of a cia agent--they are left with the bullshit extra charges that they add in so as to up the amount of time someone ends up in prison. (im sure the prosecutors dont see it that way but it does bug me)

they did it to libby; they did it to bill clinton; they did it to martha stewart. when they cant get the real crimes to stick they charge the things that werent even part of the investigation to begin with.

[/rant]

oops now see what you made me do!

in any case, the 5th isnt about not incriminating yourself by lying on the stand. if she has some actual crime lingering in the background, she'll have to work on getting immunity for that.

If everyone pleads the 5th and the evidence suggests that they were trying to cover Republican asses by firing attorneys that were focued on Republican scandals, who would they go after in charging obstruction of justice?

Just as I predicted. I am not surprised by this at all.

Hahahahahaa....just as you predicted?

Hilarious. Sage legal scholar that you have shown yourself to be.

this will all go the same way as "my advisers cannot be made to testify..." You're damn straight she will testify, be given immunity, and Rove and Miers will testify under oath. Or maybe a Republican with balls, Chuck Hagel, will be true when he talks about impeachment.

Hahahahahaa....just as you predicted?

Hilarious. Sage legal scholar that you have shown yourself to be.

It did not take a genious to know that people were going to plead the 5th amendment.

Then I hope Congress strings them all up.

If granted immunity, can't someone be compelled to testify, since he is no longer in jeopardy of incriminating himself?

the impression i had from the news reports is that she is suggesting that she is pleading the 5th because she doesnt want to be "scootered" by having her testimony twisted into perjury in some congressional witch hunt. it seems to me that this cant possibly be protected under the 5th ammendment. you cant claim the privilege to not be able to lie or twist the truth under oath which perjured testimony would end up being a crime in and of itself.

am i off base? is that why she is saying she'll plead the fifth?That is why she is saying she will plead the Fifth, and that refusal is perfectly consistent with jurisprudence on the right against self-incrimination.

Of course, if Congress is really interested in finding out what happened and potentially targeting her higher-ups, they could grant her immunity. With a grant of immunity, they can compel her to testify.

and what the FUCK is going on in this case? why are they consistently lying about something they have no need to lie about? i find it all baffling.The main reason is that they lied about it in the first place, and once they made that mistake they were more or less stuck with it, for both political and legal reasons.

Of course, it's possible that they really did things that would be open to legal question. For instance, in at least some cases the jobs of the attorneys may have been protected by the First Amendment (although it's a bit of a stretch)--or worse, in some cases it may be possible to claim that the firings constitute an obstruction of justice, considering that the attorneys in question were investigating political allies of the administration.

It did not take a genious to know that people were going to plead the 5th amendment.

It does however take someone with a general familiarity with the 5th amendment to know when it could be applied correctly.

In fact, I'd hazard to guess that only people who did NOT know how the 5th works would have expected this, since it has most legal scholars going "um...you can't do that"

Damned good move on her part.

Except, you know, the 5th amendment doesn't actually WORK that way.

That is why she is saying she will plead the Fifth, and that refusal is perfectly consistent with jurisprudence on the right against self-incrimination.



i dont believe it IS consistent with the 5th ammendment. the 5th ammendment is for situations where something you have already done may be a crime. you cant be compelled give testimony that might well send you to jail.

since you are expected to tell the truth under oath.

if what you are saying is that the truth is so foreign to you that there is no way you can be expected to testify without committing perjury, you are shit out of luck. immunising such a person just gives her license to lie on the stand.

It does however take someone with a general familiarity with the 5th amendment to know when it could be applied correctly.

In fact, I'd hazard to guess that only people who did NOT know how the 5th works would have expected this, since it has most legal scholars going "um...you can't do that"

I expected that someone would try to invoke the Fifth, even though it wouldn't necessarily cover the stuff they're trying to cover.

I hereby take back my former statement that immunized testimony cannot be used to convict a person of perjury.

I forgot about United States v. Apfelbaum (1980).

If granted immunity, can't someone be compelled to testify, since he is no longer in jeopardy of incriminating himself?Yeah, but unfortunately for her the testimony can still be used to prosecute her for perjury.

Yeah, but unfortunately for her the testimony can still be used to prosecute her for perjury.

ahhh so immunity cant keep her from being "libby-ed" just keep her from being prosecuted for something actually related to the firing of the us attnys?

That is why she is saying she will plead the Fifth, and that refusal is perfectly consistent with jurisprudence on the right against self-incrimination.

Actually, no, not it is not.

The 5th amendment prevents one from answering a question if the answer might incriminate that person.

Look at that, IF THE ANSWER MIGHT incriminate that person.

It only works if it is asserted in response to a specific question, on the grounds that the answer may result in an incrimination. Not that you might lie and end up perjuring yourself. The content of the answer itself must incriminate you

ahhh so immunity cant keep her from being "libby-ed" just keep her from being prosecuted for something actually related to the firing of the us attnys?

It goes more than that. In my experience, any immunity agreement, ANY immunity agreement is predicated on telling the truth.

Therefore not ONLY can she be charged for perjury if she lies, but the lie would itself invalidate the agreement, and would make it possible to incriminate her based on it.

Actually, no, not it is not.

The 5th amendment prevents one from answering a question if the answer might incriminate that person.

Look at that, IF THE ANSWER MIGHT incriminate that person.

It only works if it is asserted in response to a specific question, on the grounds that the answer may result in an incrimination. Not that you might lie and end up perjuring yourself. The content of the answer itself must incriminate youWell, but the content of the answer would incriminate her if the reason they believe she is lying is that they have obtained contradictory evidence elsewhere.

I think your argument works if she gives inconsistent statements. But if they use other information to accuse her of lying, I'm not so sure the 5th Amendment argument fails.

It goes more than that. In my experience, any immunity agreement, ANY immunity agreement is predicated on telling the truth.

Therefore not ONLY can she be charged for perjury if she lies, but the lie would itself invalidate the agreement, and would make it possible to incriminate her based on it.

well then if i were her i would be scared no matter if i had done anything or not. if she ends up with immunity and has to testitfy her only real chance is to not try to twist anything but just tell the flat-out, unvarnished, unspun truth so that she can't be "scootered" (libbied just doesnt work because of the y)

well then if i were her i would be scared no matter if i had done anything or not. if she ends up with immunity and has to testitfy her only real chance is to not try to twist anything but just tell the flat-out, unvarnished, unspun truth so that she can't be "scootered" (libbied just doesnt work because of the y)

exactly.

Now why do I get the feeling that her telling the truth is exactly what this administration is deathly afraid of?

well then if i were her i would be scared no matter if i had done anything or not.Exactly. That's why the refusal to testify cannot, in America, be used to infer guilt.

Just because you refuse to testify does not mean you've done anything wrong.

if she ends up with immunity and has to testitfy her only real chance is to not try to twist anything but just tell the flat-out, unvarnished, unspun truth so that she can't be "scootered" (libbied just doesnt work because of the y)

Well, this could be her real catch-22.

Apparently someone else has already implicated her somehow. (I'll admit to not being up on the details.)

So if she gets immunity and tells the truth, and the truth is NOT what this other individual said, she sets herself up for a possible perjury indictment if (for whatever reason) the other individual is more believable.

On the other hand, she could lie and let herself be the scapegoat for some higher-up.

Tough choice.

(This is all hypothetical, assuming she is actually innocent.)

Well, but the content of the answer would incriminate her if the reason they believe she is lying is that they have obtained contradictory evidence elsewhere.

I think your argument works if she gives inconsistent statements. But if they use other information to accuse her of lying, I'm not so sure the 5th Amendment argument fails.

the problem with this, and the reason it does fail, is because of the simple premise that what she is saying is "if you ask me that I'm going to lie, so I assert my 5th amendment rights, because if I testify the lie may incriminate me for perjury".

You know what this would do? You know what chaos this would cause?

It would make the justice system crash and burn. A court would be unable to compel ANYBODY to testify on ANYTHING, EVER, because all they'd have to say is "if you ask me that I'll lie, so you can't ask me that"

So if she gets immunity and tells the truth, and the truth is NOT what this other individual said, she sets herself up for a possible perjury indictment if (for whatever reason) the other individual is more believable.

Ahh, but that's not what incriminate means. Simply her testimony causing conflict is not sufficient. Her testimony must actually provide EVIDENCE of her guilt, testimony that simply creates an appearance of inconsistancy is not, in and of itself, incriminating.

What you raise is a fair concern. This move has a lot of constitutional scholars and attorneys (including myself) going ".....buh?"

Here's the low down dirty of it. You can plead the 5th if you believe your testimony would lead to you being charged with a crime. But the DoJ has asserted no crime was committed, so one questions precisely what crime she does not wish to reveal that she participated in for which she would assert her rights.

You can't go "I don't want to tell you, I plead the 5th". Fifth amendment only works to prevent you from testifying if you believe your testimony can be used against you in a criminal matter.

Now, she is saying the testimony to be used against her could be for a perjury charge. This is troublesome in two fashions.

First...this would mean she's asserting 5th amendment rights to prevent her from being charged with lies she would otherwise intend to tell under oath. This becomes an issue because of just that, can the 5th amendment be used ot shield you from giving testimony if you intend to lie on that testimony, thus commiting a crime?

The second problem is that it's forward looking, instead of backwards looking. The 5th amendment has been used universally as a shield to prevent you from admitting to crimes you had already committed. She is using it as a sword, to prevent them from putting her in the position to lie.

In other words, the 5th amendment is intended to prevent you from being forced to testify about crimes you have committed. It was NOT intended, as far as anyone knows, to allow you to escape giving testimony which would be the crime itself. Big difference here.

I can't be compelled to testify about a crime I have committed. It is highly questionable whether you can prevent being forced to give testimony that in and of itself would be a crime (I hope this distinction is making sense).

The final argument is "well whatever I say is going to be twisted so I don't want to say anything" except...well, the 5th doesn't work that way. There are a slew of OTHER rights, namely 4th, 6th, and 14th that protect you from that, but the 5th doesn't do it.

The way the 5th amendment would work for perjury is if you gave testimony that was perjury, were charged with perjury, and at your perjury trial asked if you committed that perjury, THEN you can plead the 5th.

But to plead the 5th because what you would say might constitute a crime in and of itself...the 5th amendment has never been applied as a forward thinking remedy, only one post facto.

So the only legitimate reason she can plead the 5th is if her testimony might lead to charges against her for crimes she has committed and admitted to in her testimony.

Bot congress can simply grant immunity for any of that, and her right to take the 5th goes *poof*

So am I right to assume that if this goes through without a fuss, it'll set the precedent that from now on any reluctant witness can plead the fifth with forward-looking perjury as an excuse not to testify?

the problem with this, and the reason it does fail, is because of the simple premise that what she is saying is "if you ask me that I'm going to lie, so I assert my 5th amendment rights, because if I testify the lie may incriminate me for perjury".No.

What's she's saying is, "If I testify and tell the truth, my answer may appear to incriminate me for perjury due to circumstances beyond my control."

She is NOT declaring that she would lie. She is declaring that her testimony would APPEAR to be false.

Ahh, but that's not what incriminate means. Simply her testimony causing conflict is not sufficient. Her testimony must actually provide EVIDENCE of her guilt, testimony that simply creates an appearance of inconsistancy is not, in and of itself, incriminating.It's all evidence. It's just a difference between good evidence and bad evidence.

So am I right to assume that if this goes through without a fuss, it'll set the precedent that from now on any reluctant witness can plead the fifth with forward-looking perjury as an excuse not to testify?Only if they believe that their HONEST testimony could be taken as evidence of perjury.

So am I right to assume that if this goes through without a fuss, it'll set the precedent that from now on any reluctant witness can plead the fifth with forward-looking perjury as an excuse not to testify?

yup. It'll basically allow someone to say that they will lie, and therefore not required to answer. It would mean that nobody could ever be required to testify about anything.

Which would cause the death of our criminal justice system. Which is why it won't happen.

Only if they believe that their HONEST testimony could be taken as evidence of perjury.

but, by definition, honest testimony CAN NOT be taken as evidence of perjury.

That's the definition of perjury.

yup. It'll basically allow someone to say that they will lie, and therefore not required to answer. It would mean that nobody could ever be required to testify about anything.

Which would cause the death of our criminal justice system. Which is why it won't happen.

You don't think they'll try and strong-arm past the Constitution...again?

No.

What's she's saying is, "If I testify and tell the truth, my answer may appear to incriminate me for perjury due to circumstances beyond my control."

She is NOT declaring that she would lie. She is declaring that her testimony would APPEAR to be false.

but the law has never dealt with that definition to my knowledge. this is not "consistant" with the 5th amendment, it is new territory entirely.

but, by definition, honest testimony CAN NOT be taken as evidence of perjury.

That's the definition of perjury.You're getting yourself all confused here.

Is it possible for me to be convicted of a crime even though I am innocent? Yes.

Is it possible for me to be convicted of perjury even though I am innocent? Yes.

Therefore, it is possible that my honest testimony can be taken as evidence of perjury. Those taking it as such would be WRONG, but that does not mean it cannot be taken as evidence.

If honest testimony could not be taken as evidence of perjury, no one could EVER be falsely convicted of perjury. EVER.

exactly.

Now why do I get the feeling that her telling the truth is exactly what this administration is deathly afraid of?

the administration is giving such an impression of guilt that i am very intrigued to know what it is that they are hiding. what is so important about firing us attnys that the truth must not be told?

You're getting yourself all confused here.

Is it possible for me to be convicted of a crime even though I am innocent? Yes.

Is it possible for me to be convicted of perjury even though I am innocent? Yes.

Therefore, it is possible that my honest testimony can be taken as evidence of perjury. Those taking it as such would be WRONG, but that does not mean it cannot be taken as evidence.

If honest testimony could not be taken as evidence of perjury, no one could EVER be falsely convicted of perjury. EVER.

You are using the wrong definition of evidence here. Honest testimony can not be taken as evidence. It is NOT EVIDENCE. Evidence is something that makes guilt EVIDENT.

If I tell a true statement, that statement, by definition, is not evidence. It can not be evidence. It does not make guilt evident.

police can use the two conflicting statements as implication, and they can argue the implication is perjury, but the statement is not EVIDENCe, as the statement is true.

Now you're using a general term such as something submitted in court, and by this is true. That, technically, is something improperly interpreted as evidence. It's not actually EVIDENCE. I was arguing with your definition.

Moreover it's highly questionable that this meets the standard of "incriminate"

the administration is giving such an impression of guilt that i am very intrigued to know what it is that they are hiding. what is so important about firing us attnys that the truth must not be told?

That they got fired because they were

1) investigating republicans

and/or

2) not investing democrats as much as they wanted them to

You are using the wrong definition of evidence here.I don't want to get caught up in semantics here, and the definition of evidence is not what is important.

The fact of the matter is this.

Suppose there is very good EVIDENCE that "X" is the case.

As a witness, I know for a fact that X is not actually the case.

However, if I tell the truth--"X is not the case"--I run the very real risk that I am incriminating myself for perjury.

Thus, I should be within my rights to claim 5th Amendment protection against testifying that "X is not the case," because I fear that if I so testify I will be convicted against the very good evidence that "X is the case."

No?

I don't want to get caught up in semantics here, and the definition of evidence is not what is important.

The fact of the matter is this.

Suppose there is very good EVIDENCE that "X" is the case.

As a witness, I know for a fact that X is not actually the case.

However, if I tell the truth--"X is not the case"--I run the very real risk that I am incriminating myself for perjury.

Thus, I should be within my rights to claim 5th Amendment protection against testifying that "X is not the case," because I fear that if I so testify I will be convicted against the very good evidence that "X is the case."

No?


There are two very big problems with this:

1) 5th amendment has ALWAYS been interpreted as backwards looking. Which is to say "I will not testify because my testimony would indicate my involvement in a past, or ongoing illegal activity". It has NEVER been used, to my knowledge, and consistantly upheld to allow one to say "I will not testify because my testimony would indicate that THIS VERY TESTIMONY might be given illegally".

It's always been that the testimony would be evidence to another crime, not that the testimony would, in and of itself, potentially be considered a crime.

2) It's questionable, very questionable, whether a TRUE statement which conflicts with a past FALSE statement could ever really be considered incriminating, as the true statement is not a crime. It has also never been held that a true statement uttered in contradiction of a false statement is incriminating. It would be a HUGE stretch to say that a TRUE statement can ever be considered incriminating.

There are two very big problems with this:

1) 5th amendment has ALWAYS been interpreted as backwards looking. Which is to say "I will not testify because my testimony would indicate my involvement in a past, or ongoing illegal activity". It has NEVER been used, to my knowledge, and consistantly upheld to allow one to say "I will not testify because my testimony would indicate that THIS VERY TESTIMONY might be given illegally".
I know that.

What I am arguing is that if the principle of the 5th Amendment means anything, it is that I should not be obliged to testify when I have reason to believe that my testimony will appear to make me guilty of a crime.

This is especially true to the extent that it protects innocent people against being compelled to make statements that implicate them in a crime. If you look at the history of the 5th Amendment itself (as in, debate and ratification), you will find that it was inspired by a history of torture used to do just this.

Thus, while there may not be any clear precedent, I am arguing that any reasonable interpretation of the protection should include protection against being forced to make truthful statements that will appear untruthful, so long as perjury is a crime.

It's always been that the testimony would be evidence to another crime, not that the testimony would, in and of itself, potentially be considered a crime.Either way, I'm incriminating myself.

2) It's questionable, very questionable, whether a TRUE statement which conflicts with a past FALSE statement could ever really be considered incriminating, as the true statement is not a crime.No, but I'm talking about the possibility of a false conviction for perjury which could result not from a contradiction in my own statements but rather an apparent untruth in ONE of them.

Suppose I am being questioned in a case (and I am not the defendant) and camera footage is presented that shows a person who is my exact twin present at a location that I was not present. Everyone concerned (except for me) agrees that the person in the video is me. I know that it is not me.

If I tell the truth and insist that it was not me, I face a perjury charge. Rather than lie to avoid the criminal charge, I should have the right to withhold my answer to the question.

It would be a HUGE stretch to say that a TRUE statement can ever be considered incriminating.You're still missing the point.

I'm the only one who knows it is a true statement!!!

No.

What's she's saying is, "If I testify and tell the truth, my answer may appear to incriminate me for perjury due to circumstances beyond my control."

She is NOT declaring that she would lie. She is declaring that her testimony would APPEAR to be false.

I don't think so--it only protects you from actually incriminating yourself over past bad acts. In other words, if Goodling is in violation of Section 1001, which is giving someone else false information to pass along to Congress, which is what McNulty is saying she did, then she can use the 5th Amendment to keep from having to testify as to what she told McNulty to do, but she can't simply use it as a "get out of testifying" card. She can only use it to cover her ass on those bad acts.

I don't think so--it only protects you from actually incriminating yourself over past bad acts.No, it's only ever been used to protect someone from incriminating herself over past bad acts.

But the standard for determining whether the protection is justified is whether the person faces a "substantial and real" hazard of incrimination. U.S. v. Vavages (1998). Moreover, this does not need to be an objective hazard--she just needs to be able to make a "good faith" claim that she fears incrimination.

Assuming, for the moment, that Congress really has convinced Goodling that they are on some kind of witch-hunt on which they will take indictments for perjury when they cannot get anything else, Goodling's case seems to satisfy the standard: she believes in good faith that if she testifies truthfully her testimony may be used to incriminate her.

Nowhere in self-incrimination jurisprudence do the courts say it only applies to past actions. The fact of the matter is that they have never ruled on such a case, so we don't have a precedent.

In other words, if Goodling is in violation of Section 1001, which is giving someone else false information to pass along to Congress, which is what McNulty is saying she did, then she can use the 5th Amendment to keep from having to testify as to what she told McNulty to do, but she can't simply use it as a "get out of testifying" card.People seem to be making this out as if allowing her to claim the Fifth would amount to allowing people to claim the Fifth for everything.

You seem to be missing the fact that her attorney's claim that she is concerned with how Congress is approaching this is vital to her case. A court could still rule that her claim is "trifling or imaginary" rather than "substantial and real."

This is not a "get out of testifying card."

I happen to think it's a little silly myself, but on principle I think someone should be able to claim Fifth Amendment protection from perjury, or else we stand the chance of allowing perjury really to become the "catch-all" crime that the government can use against anyone, for anything.

I understand what you're saying, but as you say, there's no real precident for this. There's no real standard for this. It's never been done as far as I know.

Does it meet the "spirit" of the 5th? Maybe...

Does I mean I buy that she has any legitimate concern about this being the case? No, none what so ever. Especially that she's using Libby as an example of a "democrat witch hunt" despite the fact that Fitzgerald was appointed as part of a republican administration.

Does I mean I buy that she has any legitimate concern about this being the case? No, none what so ever.On that, we agree.

Time to pass the bong... ;)

I understand what you're saying, but as you say, there's no real precident for this. There's no real standard for this. It's never been done as far as I know.

Does it meet the "spirit" of the 5th? Maybe...

Does I mean I buy that she has any legitimate concern about this being the case? No, none what so ever. Especially that she's using Libby as an example of a "democrat witch hunt" despite the fact that Fitzgerald was appointed as part of a republican administration.

Yeah, using Libby as an example might score points with the wingnut crowd, but it doesn't strike me as a sound legal strategy. After all, in the eyes of the law (and sane people everywhere), Libby is a liar, and more importantly, obstruction of justice, which meant he was lying in an attempt to hide a larger crime. Is that the precedent Goodling really wants to use for her own case? I mean, I know she went to Liberty University's law school and everything, but that's taking blind faith to an extreme, I think.

No, it's only ever been used to protect someone from incriminating herself over past bad acts.

But the standard for determining whether the protection is justified is whether the person faces a "substantial and real" hazard of incrimination. U.S. v. Vavages (1998). Moreover, this does not need to be an objective hazard--she just needs to be able to make a "good faith" claim that she fears incrimination.

Assuming, for the moment, that Congress really has convinced Goodling that they are on some kind of witch-hunt on which they will take indictments for perjury when they cannot get anything else, Goodling's case seems to satisfy the standard: she believes in good faith that if she testifies truthfully her testimony may be used to incriminate her.

Nowhere in self-incrimination jurisprudence do the courts say it only applies to past actions. The fact of the matter is that they have never ruled on such a case, so we don't have a precedent.

People seem to be making this out as if allowing her to claim the Fifth would amount to allowing people to claim the Fifth for everything.

You seem to be missing the fact that her attorney's claim that she is concerned with how Congress is approaching this is vital to her case. A court could still rule that her claim is "trifling or imaginary" rather than "substantial and real."

This is not a "get out of testifying card."

I happen to think it's a little silly myself, but on principle I think someone should be able to claim Fifth Amendment protection from perjury, or else we stand the chance of allowing perjury really to become the "catch-all" crime that the government can use against anyone, for anything.


you have an interesting theory there (or they do) but i dont think it will ever face a legal challenge. she would have to plead the 5th and it would have to be denied, eh? some contempt of congress charge would ensue, it could end up in the supreme court. i dont see the supreme court being willing to support this kind of interpretation (but you never know)

in any case, i expect she will get an immunity deal and spill her guts. thats why she has come out with the challenge now, its a way of signalling that she has something to say that is very worth hearing.

you have an interesting theory there (or they do) but i dont think it will ever face a legal challenge. she would have to plead the 5th and it would have to be denied, eh? some contempt of congress charge would ensue, it could end up in the supreme court. i dont see the supreme court being willing to support this kind of interpretation (but you never know)

in any case, i expect she will get an immunity deal and spill her guts. thats why she has come out with the challenge now, its a way of signalling that she has something to say that is very worth hearing.

The problem with this is what she is claiming. They can give her immunity for any crimes she describes.

They can NOT give her immunity from charges of perjury. If they do so, she has no requirement to actually, you know, tell the truth.

The problem with this is what she is claiming. They can give her immunity for any crimes she describes.

They can NOT give her immunity from charges of perjury. If they do so, she has no requirement to actually, you know, tell the truth.

i dont think they will offer her that.

can they just GIVE her immunity of a standard sort without her agreement and compell her to testify?

if a lawyer refused to testify in that kind of circumstance, would she face problems with the bar?

i dont think they will offer her that.

can they just GIVE her immunity of a standard sort without her agreement and compell her to testify?

if a lawyer refused to testify in that kind of circumstance, would she face problems with the bar?

The general answer to your question is yes. You can be given immunity, without your consent, and then compelled to testify. If you can not be charged for the crime in which you incriminated yourself, you have no 5th amendment rights.

if a lawyer refuses to testify they don't get in trouble with the bar. They get jailed until such time as they are willing to testify.

But that's somewhat irrelevant. She is not asserting the 5th over the fact that her testimony might incriminate her in some matter. They could give her immunity to that matter.

Basically if your testimony may incriminate you in a crime, you can be compelled to testify if you are given immunity for that crime.

She is claiming that her testimony itself may be manipulated to substantiate a perjury charge. She is claiming that the democrats are engaging in a witch hunt and are only trying to get her to testify to trip her up or manipulate her. Therefore the crime in which she fears her testimony might be incriminating is a perjury charge stemming from that testimony.

So the only immunity congress could offer her, that would satisfy this problem, is offering her immunity from any charges of perjury stemming from her testimony.

But an offer of immunity from a charge of perjury in regards to her testimony would effectively render her able to lie under oath without penalty.

So there's no immunity they can realistically offer her that would satisfy her claim.

The general answer to your question is yes. You can be given immunity, without your consent, and then compelled to testify. If you can not be charged for the crime in which you incriminated yourself, you have no 5th amendment rights.

if a lawyer refuses to testify they don't get in trouble with the bar. They get jailed until such time as they are willing to testify.

But that's somewhat irrelevant. She is not asserting the 5th over the fact that her testimony might incriminate her in some matter. They could give her immunity to that matter.

Basically if your testimony may incriminate you in a crime, you can be compelled to testify if you are given immunity for that crime.

She is claiming that her testimony itself may be manipulated to substantiate a perjury charge. She is claiming that the democrats are engaging in a witch hunt and are only trying to get her to testify to trip her up or manipulate her. Therefore the crime in which she fears her testimony might be incriminating is a perjury charge stemming from that testimony.

So the only immunity congress could offer her, that would satisfy this problem, is offering her immunity from any charges of perjury stemming from her testimony.

But an offer of immunity from a charge of perjury in regards to her testimony would effectively render her able to lie under oath without penalty.

So there's no immunity they can realistically offer her that would satisfy her claim.

interesting

soyou think she would rather spend some time in jail? or do you think that the congress wouldnt go that far?

interesting

soyou think she would rather spend some time in jail? or do you think that the congress wouldnt go that far?

that's the problem.

She can't go to jail for refusing to testify on the grounds of her 5th amendment rights. That's the point of them. That's the ONE time you can get out of it.

They will not offer her immunity because doing so would allow her to lie.

So if she asserts her 5th amendment rights, she can't be compelled until a court decides that she can not assert her rights in this way.

If she can't, she can be forced to, and if she refuses she can be sent to jail until she changes her mind.

If it is determined she CAN assert her rights then...there's nothing they can do about it.

that's the problem.

She can't go to jail for refusing to testify on the grounds of her 5th amendment rights. That's the point of them. That's the ONE time you can get out of it.

They will not offer her immunity because doing so would allow her to lie.

So if she asserts her 5th amendment rights, she can't be compelled until a court decides that she can not assert her rights in this way.

If she can't, she can be forced to, and if she refuses she can be sent to jail until she changes her mind.

If it is determined she CAN assert her rights then...there's nothing they can do about it.

no that doesnt make sense to me. if they give her immunity that covers her actual 5th ammendment rights, she cant assert that it needs to cover FUTURE crimes that she migh commit on the stand.

no that doesnt make sense to me. if they give her immunity that covers her actual 5th ammendment rights, she cant assert that it needs to cover FUTURE crimes that she migh commit on the stand.

That's what she's asserting right now, which is the crux of this entire discussion. I think it's a bullshit claim all the way around. It's not that easy to prove a perjury charge, after all. Libby's lies (since she invoked him as part of her defense) were so egregious that the jury had little choice but to convict him. It's not quite the trap that Goodling is making it out to be--but that's to be expected.

no that doesnt make sense to me. if they give her immunity that covers her actual 5th ammendment rights, she cant assert that it needs to cover FUTURE crimes that she migh commit on the stand.

immunity that covers her 5th amendment rights? I don't even know what you mean.

You have to understand WHAT she is claiming. She's not saying that if I testify I will be made to reveal crimes. That is easily fixed, an offer of immunity fixes that immediatly.

What she is claiming is that because the democrats are intent on attacking republicans and their administration, getting her to testify is strictly an effort to get her charged with perjury.

In other words, she is claiming they don't really care WHAT she has to say, they're going to try to trick her, trap her, manipulate her words, or in any way they can attempt to get her charged with perjury.

She is saying that because of the democrat "witch hunt" ANYTHING SHE SAYS would be used in an attempt at a perjury charge. So she is claiming not that some part of the testimony will be used as evidence that she commited some crime.

She is claiming that THE TESTIMONY ITSELF would be used and manipulated by the democrats to attempt to substantiate a perjury charge.

The ONLY immunity congress could give her to alleviate this problem is to offer her immunity from perjury. Which would allow her to lie on the stand without penalty.

we understanding now? She is claiming that the crime that she would implicate herself in (or at least the crime democrats will try to make it seem like she implicated herself in) is perjury. They can't offer her immunity from perjury.

And as long as she's claiming 5th amendment, she can not be compelled. So we have to wait until she drops it, or a court makes a ruling stating whether or not her asserting was valid.

Oh, the irony. A government lawyer worried about a perjury trap.

I am shocked, shocked, that there is gambling in this establishment!!

She probably should call Martha Stewart for advice about how to get on with her soon to be bunkies.

So, the same group that wants to abolish the Constitution now uses it? Cute.

To everything, turn, turn, turn .....

Damned good move on her part. We don't need anyone else getting the Scooter Libby treatment because they have some slight conflicts in their statements. Lying under oath is different than having a bad memory, unless you belong to the Bush Administration. Then, of course, you're presumed guilty and taking the fifth is just further proof of it.

Cute how it seems that EVERYONE in the Administration has a bad memory and that you're willing to waive "innocent until proven guilty" to ANYONE but the Administration, to which you give the "innocent THOUGH proven guilty" benefit of the "doubt". And these aren't "slight conflicts" any way you cut it.

immunity that covers her 5th amendment rights? I don't even know what you mean.

You have to understand WHAT she is claiming. She's not saying that if I testify I will be made to reveal crimes. That is easily fixed, an offer of immunity fixes that immediatly.

What she is claiming is that because the democrats are intent on attacking republicans and their administration, getting her to testify is strictly an effort to get her charged with perjury.

In other words, she is claiming they don't really care WHAT she has to say, they're going to try to trick her, trap her, manipulate her words, or in any way they can attempt to get her charged with perjury.

She is saying that because of the democrat "witch hunt" ANYTHING SHE SAYS would be used in an attempt at a perjury charge. So she is claiming not that some part of the testimony will be used as evidence that she commited some crime.

She is claiming that THE TESTIMONY ITSELF would be used and manipulated by the democrats to attempt to substantiate a perjury charge.

The ONLY immunity congress could give her to alleviate this problem is to offer her immunity from perjury. Which would allow her to lie on the stand without penalty.

we understanding now? She is claiming that the crime that she would implicate herself in (or at least the crime democrats will try to make it seem like she implicated herself in) is perjury. They can't offer her immunity from perjury.

And as long as she's claiming 5th amendment, she can not be compelled. So we have to wait until she drops it, or a court makes a ruling stating whether or not her asserting was valid.

dont pretend you dont know what i mean. just tell me how you think im wrong.

so your saying that if im called to testify in congress*I* can claim that i will not testify, asserting my 5th ammendment rights, and deny that any granting of immunity covers the crimes i might be charged with by testifying truthfully and that THAT assertion holds until another court calls it bullshit?

so ANYONE can get out of making the trip to washington as long as they are 1) tesifying under oath and 2) assert future 5th ammendment rights that cover the twisting of my truthful testimony?

i dont see why such a stupid claim of constitutional rights would notbe struck down immediately by whatever court it might get to.

so ANYONE can get out of making the trip to washington as long as they are 1) tesifying under oath and 2) assert future 5th ammendment rights that cover the twisting of my truthful testimony?

That is what she is claiming.

i dont see why such a stupid claim of constitutional rights would notbe struck down immediately by whatever court it might get to.

This is how assertion of rights work. If you try to make me testify, and I assert my 5th amendment rights, we have to figure out if that assertion is valid.

The problem is, as pointed out, is that it's not THAT stupid. That's the problem. I thought about this some, and it's got some subtle elegance to it.

You can assert your 5th amendment rights if you have a reasonable belief that your testimony would help to provide evidence of a crime.

Her claim is that she will say something truthfully that the democrats, engaged in a witch hunt, will interpret as false, and use her true, but believed to be false, statements as evidence of the crime of perjury.

so her problem hinges on two things:

1) can giving a TRUE statement, but one that is believed to be false, be considered evidence of perjury?

2) If so, is her belief that this will occur reasonable in the circumstances?

If the answers to both of those questions are "yes", then she may actually have a claim.

That is what she is claiming.



This is how assertion of rights work. If you try to make me testify, and I assert my 5th amendment rights, we have to figure out if that assertion is valid.

The problem is, as pointed out, is that it's not THAT stupid. That's the problem. I thought about this some, and it's got some subtle elegance to it.

You can assert your 5th amendment rights if you have a reasonable belief that your testimony would help to provide evidence of a crime.

Her claim is that she will say something truthfully that the democrats, engaged in a witch hunt, will interpret as false, and use her true, but believed to be false, statements as evidence of the crime of perjury.

so her problem hinges on two things:

1) can giving a TRUE statement, but one that is believed to be false, be considered evidence of perjury?

2) If so, is her belief that this will occur reasonable in the circumstances?

If the answers to both of those questions are "yes", then she may actually have a claim.

so IF this was a court of law instead of congress, could the presiding judge just rule that she is an idiot, compel her to testify, and leave it for appellate courts to overturn if need arises?

can this bung up congress' investigation because they cant do that? or can it be similar? they compel her to testify, immunizing her from testimony about past crimes, and leave it to a future judge to retroactively assert her right to not incriminate herself?

so IF this was a court of law instead of congress, could the presiding judge just rule that she is an idiot, compel her to testify, and leave it for appellate courts to overturn if need arises?


Yes, in instances when a 5th amendment right is envoked in court, the preciding judge is the one who would make the ruling as to whether it is valid.

can this bung up congress' investigation because they cant do that? or can it be similar? they compel her to testify, immunizing her from testimony about past crimes, and leave it to a future judge to retroactively assert her right to not incriminate herself?

Congress can not decide what is, and is not, a right, and what is, and is not, a proper assertion of that right. Very famous case, City of Bourne if I recall.

They can however take her to court to get this matter settled. It's not like they have NO option, they can avail themselves on the judicial branch to settle this.

The other thing to note is, congress can not try her. Not their power. If she refused to testify THEY can not do much to her if she refused to testify.

What they can do is declare her in contempt of the proceedings and have the police (likely Federal Marshals since this is D.C.) arrest her. She will then be arraigned in court (likely Federal District Court for the DIstrict of Washington D.C.) where she will assert her 5th amendment rights as a defense to the charge of contempt.

At which point the judge will rule either that her 5th amendment rights can not be asserted in this matter, she is in contempt, and order her held until she testifies, or that she can not be compelled, and therefore is not in contempt, and release her.

Congress can not try her, or reach a judgement on the matter of her claim.

They CAN have her arrested for refusing to testify, and let a judge sort it out.

The other thing to note is, congress can not try her. Not their power. If she refused to testify THEY can not do much to her if she refused to testify.

What they can do is declare her in contempt of the proceedings and have the police (likely Federal Marshals since this is D.C.) arrest her. She will then be arraigned in court (likely Federal District Court for the DIstrict of Washington D.C.) where she will assert her 5th amendment rights as a defense to the charge of contempt.

At which point the judge will rule either that her 5th amendment rights can not be asserted in this matter, she is in contempt, and order her held until she testifies, or that she can not be compelled, and therefore is not in contempt, and release her.

Congress can not try her, or reach a judgement on the matter of her claim.

They CAN have her arrested for refusing to testify, and let a judge sort it out.

thanks for the info. its all too "legal" for me to figure out on my own.

The other thing to note is, congress can not try her. Not their power. If she refused to testify THEY can not do much to her if she refused to testify.

What they can do is declare her in contempt of the proceedings and have the police (likely Federal Marshals since this is D.C.) arrest her. She will then be arraigned in court (likely Federal District Court for the DIstrict of Washington D.C.) where she will assert her 5th amendment rights as a defense to the charge of contempt.

At which point the judge will rule either that her 5th amendment rights can not be asserted in this matter, she is in contempt, and order her held until she testifies, or that she can not be compelled, and therefore is not in contempt, and release her.

Congress can not try her, or reach a judgement on the matter of her claim.

They CAN have her arrested for refusing to testify, and let a judge sort it out.

Sorry to thread jack, but are you going to send me that Diplomacy email or not?

thanks for the info. its all too "legal" for me to figure out on my own.

There is a reason lawschool is 3 years.

Sorry to thread jack, but are you going to send me that Diplomacy email or not?

yup, I totally spaced (busy week) saw your thread, gonna get to it at lunch.

There is a reason lawschool is 3 years.
Yeah, to drive law students absolutely insane, and co-opt their souls.
*shudders*

Yeah, to drive law students absolutely insane, and co-opt their souls.
*shudders*

that's the first 4 weeks, then what?

that's the first 4 weeks, then what?

Well, it's not the group sex they promised in the brochure the lying, lawyering bastards. Tell me it gets better...please?

Well, it's not the group sex they promised in the brochure the lying, lawyering bastards. Tell me it gets better...please?


um....

it finishes, that's sorta "better".

She is saying that because of the democrat "witch hunt" ANYTHING SHE SAYS would be used in an attempt at a perjury charge. So she is claiming not that some part of the testimony will be used as evidence that she commited some crime.Your assessment is basically right, except that I don't think she is going so far as to claim that "anything" she says will be used in an attempt at a perjury charge.

Rather, her lawyer's statements to the effect that Members of Congress have "already made up their minds" about what happened suggest that she has specific testimony that would contradict this narrative, she cannot prove the veracity of her testimony, and given the Libby climate she is afraid that this will prove easy bait for a perjury charge.

Thus, the implication is that there are specific elements of her testimony that could lead to a perjury charge.

The more I think about it, the more I think her argument is legally defensible--which is not to say it will necessarily stand up to appellate review, since plenty of good legal arguments fail.

Significantly, if her claim works it will NOT open the floodgates of 5th Amendment assertions against the possibility of a perjury charge.

The critical component of her claim is that it is reasonable for her to believe that Congress will put her up for a perjury charge if they a) don't hear what they want to hear; b) hear something they refuse to believe.

Note that her burden of proof here is fairly light: she doesn't need to prove that it is likely that Congress would come after her for perjury, just that it is reasonable for her to believe that they will. She needs to show that there is real evidence of the threat, but she does not have to prove that the evidence is particularly compelling.

If she succeeds, does that mean that any person can claim the 5th Amendment against perjury, any time they want? Not at all.

Most of the time, it is not at all reasonable to believe that public officials are "out to get you" (or people in your position). While the burden of proof (reasonableness) is relatively low, there is still a burden of proof.

Now, I'm torn as to whether I want this to hold up. On the one hand, I want to hear what people in the DoJ have to say, and if this works for her it would presumably work for all of them, to the extent that they are in the same position vis-a-vis Congress and the investigation.

On the other hand, I rather like the legal argument, and on principle I believe the 5th Amendment was written to protect individuals from just the sort of government abuse that Goodling claims (rightly or wrongly) she faces.