Firing US Attorneys - What crime was committed? [Note: thread is from 2007]

[Elendil_s_Heir]

@tomndebb

…I suspect that the firings were purely political, with increasing evidence that they may have been carried out to hide illegal activities, but the right to decline to incriminate oneself is enshrined in the Constitution (as amended) and I would not see it torn down even to get at these people.

Well said. But having a top DoJ official plead the Fifth is not going to help the Administration at all, and will only add fuel to the political/legal fire.

I love it.

[David_Simmons]

@tomndebb

… the right to decline to incriminate oneself is enshrined in the Constitution (as amended) and I would not see it torn down even to get at these people.

Very few are more sensitive to the diminishing of an individual’s rights than I am.

However, you can’t use the 5th amendment to shield yourself from embarassment, or from being questioned in a hearing by meanies or charlatans.

As the cite in this post points out, you must reasonably believe that your testimony will be used against you to prove an element, or elements, of a crime.

Other uses of the 5th are frivolous.

So, to use the 5th properly in order to avoid testifying Gooding must reasonably believe that she might be questioned about some act she performed or participated in that could be a crime.

[Bricker]

@David Simmons

So, to use the 5th properly in order to avoid testifying Gooding must reasonably believe that she might be questioned about some act she performed or participated in that could be a crime.

Not quite, although very close.

She must reasonably believe that she might be questioned about some act she performed or participated in that could be an element of a crime.

For example, let’s say that I’m worried about being charged with conspiracy to rob a bank, even though I am factually innocent. Generally speaking, a conspiracy charge requires proof of an agreement among two or more people to commit a crime, and an overt act in furtherance of that crime.

In this planned bank robbery, the participants are alleged to have agreed they would each wear masks of Disney characters and each carry shotguns.

I, wholly innocently, happened to buy some Mulan and Hercules masks for a party, and some shotgun shells for trap shooting, last week. I may refuse to disclose those purchases under oath, even though they were legal and I was not guilty of any crime, by invoking the Fifth Amendment.

[tomndebb]

@David Simmons

So, to use the 5th properly in order to avoid testifying Gooding must reasonably believe that she might be questioned about some act she performed or participated in that could be a crime.

However, as i noted, by not taking the Fifth, she opens herself up to manipulative interrogation by Congressional panelists who can later, if they choose to disbelieve her level of knowledge, accuse her of perjury when testifying to Congress or of “obstructing” a Congressional inquiry.

I agree that it is great “bad” publicity for the administration to have one of their own using the Fifth to refuse to defend their position, but I am less inclined to decide that her taking of the Fifth is prima facie evidence of her knowledge of a crime. She is in pretty much the same position as the people called to testify before Joe McCarthy or HUAC about the “communist threat.”

[Voyager]

Bricker, do you have any comments on my question in post #28, basically about whether the calls to Iglesias trying to get him to indict some democrats or speed up the investigation can be considered obstruction of justice? I know Congressional interference is considered unethical, but is it illegal under some other rule?

Thanks

[David_Simmons]

@tomndebb

However, as i noted, by not taking the Fifth, she opens herself up to manipulative interrogation by Congressional panelists who can later, if they choose to disbelieve her level of knowledge, accuse her of perjury when testifying to Congress or of “obstructing” a Congressional inquiry.

But I don’t believe she can properly take the 5th unless she actually did something that she thinks can be used against her in a later trial. Even in Bricker’s example of someone who had nothing to do with a crime, the person did something that could be used against him.

I feel for people who are harried and abused by powerful people, but that doesn’t give them a right to use the 5th amendment.

I do agree that her using the 5th isn’t necessarily evidence that she was involved in any sort of crime. However it doesn seem to me that her doing so is a damned good reason for further and more rigorous investigation.

[David_Simmons]

Aha. Friend squink over in GD has turned up something that would give Goodling a valid reason to invoke her 5th amendment protection from testifying.

[What_the]

@David Simmons

I feel for people who are harried and abused by powerful people, but that doesn’t give them a right to use the 5th amendment.

So how does one acquire that right?

[Diceman]

@David Simmons

Aha. Friend squink over in GD has turned up something that would give Goodling a valid reason to invoke her 5th amendment protection from testifying.

From the linked thread:

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

Is this an accurate summary of the False Statements statute? If so, then you’d have to be insane to testify before Congress, under any circumstances whatsoever. You could be charged with a felony because of an innocent miscommunication :eek:

[Shodan]

@Exapno Mapcase

When I said, “Nobody in the real world would charge high-profile white house officials on those tenuous claims.” I meant every word. If that’s all they have on Gonzales, then any action would turn Congress into a national laughingstock.

I think they are relying on nobody asking the question in the title of this thread.

chunk of stuff deleted to keep this out of GD

Regards,
Shodan

[Squink]

@Diceman

Is this an accurate summary of the False Statements statute?

Here’s the text:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

Sampson is well aware of the possibility of the legal trouble as a result of all the false testimony:

D. Kyle Sampson – who resigned earlier this month ahead of revelations that White House political officials helped direct the dismissals – also will tell the Senate Judiciary Committee that he “never sought to conceal or withhold material fact about this matter” while helping prepare witnesses for Congress.

[SuaSponte]

I think this thread is an example of an unfortunate trend in American politics over the past 30-odd years: we have started to assume that improper or unethical acts must be criminal. In the converse, we have also over the same period increasingly criminalized improper or unethical acts.

I don’t think Congress is investigating criminality. Indeed, I hope not; that’s not Congress’ function. The proper purposes of the Congressional investigation (besides scoring political points, which is not inherently a bad thing), is to determine whether (a) government policy and regulations were properly applied, (b) whether the policy and regulations were good ones, or whether they should be changed, and © whether Congress was misinformed by the executive.

Part (b) is already been answered. Congress is moving to eliminate the “no Senate confirmation for interim U.S. Attorneys” rule - it has been determined to be a bad policy. Part © is important, but not necessarily criminal. Congress can say (if it turns out to be the case) “Gonzalez lied to us. He didn’t commit a crime, but we don’t trust him anymore, and if Dubya expects us to go along with anything else he wants for the Justice Department, he best get rid of the lying creep.” Nothing wrong with that.

Sua

[David_Simmons]

@SuaSponte

I think this thread is an example of an unfortunate trend in American politics over the past 30-odd years: we have started to assume that improper or unethical acts must be criminal. In the converse, we have also over the same period increasingly criminalized improper or unethical acts.

I didn’t even think of criminal acts until the gal’s lawyer said she was going to use the 5th. Then it occurred to me that you can’t do that unless you have reason to believe that you might be asked about something and your testimony used against you in a criminal trial.

[Squink]

@SuaSponte

I think this thread is an example of an unfortunate trend in American politics over the past 30-odd years: we have started to assume that improper or unethical acts must be criminal. In the converse, we have also over the same period increasingly criminalized improper or unethical acts.

Seems to me this trend is a direct consequence of elevating to high position people who hold views like this:

“The distinction between ‘political’ and ‘performance-related’ reasons for removing a United States attorney is, in my view, largely artificial.”

[SoulFrost]

Braaaaiiiinnnnnsssss
No criminal charges in Bush-era U.S. attorney firings

U.S. prosecutors ended a 22-month investigation into the Bush administration’s firing of federal attorneys, deciding not to bring criminal charges against former Attorney General Alberto Gonzales or others, the Justice Department said on Wednesday.

[Colibri]

This is just to note that we do not have a general policy against zombie threads in GQ as long as new information is provided. However, I am editing the title so that people know this is an old thread.

Colibri
General Questions Moderator