Taking The Fifth

By Susan Estrich

March 27, 2007 5 min read

It's a big deal when the counselor to the Attorney General takes the 5th Amendment rather than answer questions about how U.S. Attorneys were fired. It means, or it's supposed to, that she has reason to believe her answers would reveal a crime. It means, or it's supposed to, that she has something to hide, not that she doesn't want to tell the truth.

Monica Goodling is 33 years old. She is a graduate of Messiah College and Regent University Law School, both evangelical institutions. That may explain her political ties to the administration, but it doesn't tell you what qualified her to be evaluating U.S. Attorneys. Certainly not her knowledge of the 5th Amendment.

Monica Goodling's lawyer and affidavit explaining her decision to invoke her 5th Amendment privilege present the decision as a response to an overly politicized environment that is perilous for an honest witness. "The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real," her lawyer, John Dowd, told reporters. "One need look no further than the recent circumstances and proceedings involving Lewis Libby," he added. As reported in The New York Times, Mr. Dowd told Senator Patrick J. Leahy, Democratic Chairman of the Judiciary Committee, that Ms. Goodling's refusal does not signal that she has anything to hide, but is a recognition of the "hostile and questionable environment" that has been spawned by the controversy.

Come again?

The 5th Amendment doesn't work that way.

Lewis Libby lied. If he had provided truthful and accurate testimony when under oath he wouldn't have been indicted. If Ms. Goodling's only problem is that she's afraid she'll be indicted for perjury for her testimony before the committee then there is a simple solution: Don't lie.

The 5th Amendment isn't a shield against having to tell the truth to Senate committees asking embarrassing questions. The idea that you can invoke the 5th Amendment because they're playing gotcha is ludicrous. They have a right to play gotcha. That's the business. If you haven't committed a crime, you have to answer — not argue that you might commit one by your answers and therefore have a right to avoid the exercise. Every would-be witness would like to claim that kind of privilege, but it doesn't exist because what you're really asking for is a license to lie.

"The American people are left to wonder what conduct is at the base of Ms. Goodling's concern that she may incriminate herself in connection with criminal charges if she appears before the committee under oath," Senator Leahy said in response to Goodling's letter, prompting another ridiculous outburst by Goodling's lawyer, who said Leahy's response was more proof of the bitter partisan atmosphere justifying his client's creation of the new 5th Amendment privilege against perjuring yourself in a cover-up.

What crime is Monica Goodling afraid of being forced to reveal?

The White House certainly doesn't seem to care. In response to Goodling's invocation of the 5th, the president, instead of expressing outrage, conveyed sympathy. Deputy Press Secretary Dana Perino said, "It is unfortunate that a public servant no longer feels comfortable that they will be treated fairly in testimony before Congress. However, we must respect the constitutional rights of the people involved and the decision of those individuals and their counsel to protect those rights."

Someone should care. Based on what her lawyer is saying, Monica Goodling has no right to invoke the 5th Amendment. If she has nothing to hide, she has to testify. If she has something to hide, her old boss is a goner. Either way, this can't be what they taught at Pat Robertson's law school.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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