There are several important questions arising out of Monica Goodling‘s determination to plead the fifth on possibly questionable grounds (or maybe it’s just the determination of her lawyers, who may or may not be acting in her best interests, depending on who’s paying their bills).

The letter that House Judiciary Committee Chairman John Conyers, Jr. and Chairwoman for the Subcommittee on Commercial and Administrative Law Linda Sánchez sent to Monica Goodling‘s lawyers last week raises very real questions about whether Goodling is abusing the fifth amendment’s protection.

It’s far from clear what happens if that’s what she turns out to be doing.

I have been unable to find much by way of authoritative opinions on the subject, so much of this post is somewhat speculative. But maybe some questions are worth speculating about, even if authoritative opinions are unavailable.

The questions first:

1) Why did she decide to take an apparently questionable fifth instead of negotiating for immunity? Who is she protecting, herself or others? Or even more basic, who decided that Monica Goodling needed to take the fifth?

2) Can she be compelled to testify if she is found to be improperly invoking the fifth? By the committee, or only by a judge?

3) Or can she be compelled to testify simply by being granted immunity from prosecution? Immunity could be unilaterally granted even if she does not request it, or even if she opposes it.

4) What happens if she appears before the Senate Judiciary Committee, invokes the protection of the Fifth Amendment, and is then asked: “Are you invoking the Fifth Amendment in response to this question even though you have committed no crime that answering the question might expose you to prosecution for”? She would severely discommode her lawyers if she answers anything but “Yes”, because that is what her lawyers have stated in written submissions to the committee. So if she answers “Yes”, what happens at that point? Can the committee rule that she cannot then invoke the Fifth Amendment, and must answer the question or be held in contempt? Or if an attempt to invoke the Fifth Amendment can be rejected under these circumstances, can it be rejected by the committee, or only by a federal court?

5) Does Goodling put herself in legal jeopardy if she takes the fifth for no good reason?

After searching all the blogs whose legal analysis I respect, here’s the only semi-authoritative information I have been able to find on the subject. It’s from FindLaw and does not specifically address Goodling’s situation. It is, in fact, five years old. And it is written in the form of a dialog between two law professors who blog on that site, Akhil Reed Amar and Vikram David Amar, who happen to be brothers. They discuss whether a witness before a Congressional committee who seeks to invoke the fifth can be compelled to testify, by giving them immunity whereby the actual testimony they give must be excluded from any later criminal trial against them. The Amar brothers disagree initially, and it is not entirely clear to me whether they agree by the end. It does appear that this is not exactly a settled issue.

Josh Marshall at TPM posted comments by a reader who “identifies himself as a lawyer”:

A party can request a hearing (in federal or state court) to examine whether the party invoking the Fifth has done so properly. …

(Goodling) either is refusing to (provide) testimony because she may be testifying about some crime she has previously committed (which is a valid reason for taking the Fifth) or she isn’t. If … she isn’t, she should be compelled to testify under subpoena.

This seems to argue that a Congressional committee cannot by itself compel a witness to testify if it suspects the witness is improperly invoking the fifth, but it can refer the matter to a court, which can then compel the witness to testify if it determines that the witness is improperly invoking the fifth.

The same reader also suggests that “refusing to testify under a bogus claim of needing to take the Fifth” may constitute obstruction of justice, rendering the witness liable to prosecution.

A ThinkProgress post contains the following comments:

#100: “Even for persons who have a legitimate fear that their statements may subject them to criminal prosecution, we have long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against the speaker in any criminal case.” Note that Justice Thomas cites Kastigar v. United States, 406 U.S. 441, as support for that passage. Kastigar held that that compelled testimony is legitimate given the grant of immunity.

So, yes, Goodling could likely be compelled to testify, if she were granted immunity. Until that is done, she cannot be compelled to testify. She cannot be held in contempt for invoking her Fifth Amendment rights.

Note: This is a broader immunity than in the Amar brothers discussion; in their discussion only the statements themselves cannot be used in a criminal case, the fruits of those statements can.

#114 Supreme Court: “[W]e have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment’s “basic functions … is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.’” In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. 353 U. S., at 421-422.

Ohio v. Reiner

This is counter to what all the blogs have been opining, namely that an innocent person cannot invoke the fifth.

#144 U.S. v. Susan H. McDougal

The district court ordered McDougal to testify under the broad grant of use immunity prescribed in 18 U.S.C. SS 6002. That immunity “is coextensive with the scope of the [Fifth Amendment’s]privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of privilege.” Kastigar v. United States,

… McDougal’s argument is foreclosed by controlling
Supreme Court precedent. When called before a grand jury, every
citizen is bound to divulge whatever information he or she
possesses but retains the protection of the Fifth Amendment’s
privilege against self-incrimination. “Immunity is the
Government’s ultimate tool for securing testimony that otherwise
would be protected [by the Fifth Amendment] . . . . [W]hen granted
immunity, a witness once again owes the obligation imposed upon all
citizens — the duty to give testimony — since immunity
substitutes for the privilege.” Mandujano,