The Overblown Personnel Matter has crossed another threshold: we now have an important official taking the Fifth. No doubt we will be treated to much pious lecturing about the impropriety of drawing the obvious inference: that Monica Goodling, the Justice Department’s official liaison with the White House, has something criminal to hide.
But of course the rule that, in a criminal case, no adverse inference is to be drawn from a defendant’s invocation of his testimonial privilege against self-incrimination is a rule of law, not a rule of logic. And in fact that adverse inference can be properly used in civil suits and administrative proceedings.
Now of course it’s possible that Goodling is acting in bad faith, using the Fifth Amendment to shield, not her own criminality, but that of others. Or perhaps she aims to avoid, not indictment, but merely embarrassment. In any case, her decision not to testify on the grounds that (truthful) testimony might incriminate her adds additional force, if any were needed, to the argument against allowing the claim of “executive privilege” to get between the Congressional investigators and the truth of what happened on the White House side of the exchange.
Update Orin Kerr doubts the validity of Goodling’s claim. Perhaps she’s just maneuvering for immunity. If she proves defiant, Kerr suggests a contempt-of-Congress citation as the remedy, but of course that would have to be enforced by the Justice Department. It seems to me that the Senate or the House would do better to make use of its power to arrest recalcitrant witnesses.