DoJ White House liaison takes the Fifth

Just what had she said or done that would have made truthful testimony a threat to Monica Goodling’s ability to stay out of jail?

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.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com