I’m Sorry, I Don’t Remember

So far, the current uproar over the replacing of some U.S. Attorneys (something any president has the perfect right to do) looks like another attempt by Democrats to manufacture a scandal where there is none. Of course, it may well turn out that someone did something wrong, we don’t know yet; but the case has raised another issue that must be faced. Foolish or not, when Martha Stewart was arrested, tried and convicted for lying about a situation that did not involve any illegalities, I decided I would never answer any questions put to me by any federal agent. Of course, I don’t know how I might stand up under threat of an obstruction of justice charge, but my determination firmed up quite a bit more after observing the Scooter Libby fiasco.

We are definitely suffering from a large dose of overly ambitious and over-reaching prosecutors (remember all the day-care, child sex abuse cases and the Duke rape case) and also from the criminalization by Democrats of political differences with successful Republicans. Now it seems that the other shoe may have dropped – with investigations being stymied because persons of knowledge are afraid to answer questions because they might make a mistake or misremember something. Sometimes I can’t remember what I had for breakfast the day before yesterday or what I did last Monday. Am I going to endure personal ruin for this, or am I just going to keep my mouth shut?

Perhaps, in the case cited below, Monica Gooding’s motives are not as stated, but I’ll give her the benefit of the doubt until I learn differently.


The Libby Precedent
Why government officials prefer to take the Fifth.

Opinion Journal, March 28, 2007

If Senate Judiciary Chairman Patrick Leahy wants to investigate the Bush Administration's dismissal of eight U.S. attorneys, that's certainly his prerogative. But he and other Democrats determined to play up this faux scandal shouldn't be surprised if government officials decide they'd rather not step into this obvious perjury trap.

The Judiciary Committee is seeking testimony from, among others, Monica Goodling, the Justice Department's liaison to the White House. Democrats want to quiz Ms. Goodling on her communications with other Justice officials such as Deputy Attorney General Paul McNulty, who testified about the firings before the Senate committee in February. This week Ms. Goodling indicated she will exercise her Constitutional right to keep mum.

Sad to say, this is one more unfortunate result of the Beltway's modern habit of criminalizing political differences, a la the Scooter Libby travesty. Congress has the right to conduct oversight of the executive, and in a better world government officials would be willing to testify and give as good as they get. Thus would the public be educated about the facts and policy differences be aired.

But Ms. Goodling has been around, and she can see Democrats don't really want to know the truth; they want to shout "liar, liar" and set the stage to accuse Justice officials of criminal behavior. In a statement to the committee explaining her decision, Ms. Goodling said, "I have read public remarks by members of both the House and Senate Committees on the Judiciary in which those members have drawn conclusions about the subject matter and the testimony now under investigation by the Committee." We've read them, too.

Representative Linda Sanchez has already concluded that there have been "attempts to mislead the public on this issue." In a joint press conference, Senators Charles Schumer and Dianne Feinstein characterized Justice's testimony as "misleading statement after misleading statement--deliberate misleading statements." Mr. Schumer is also a lawyer, and we reckon he deliberately chose that word "deliberate" as a prelude to charging criminal deception and keeping the issue alive long enough to help elect more Senate Democrats next year. (He runs the Senate Democratic campaign committee.)

Senator Leahy himself issued a press release asserting that Attorney General Alberto Gonzales and Mr. McNulty "failed to tell Congress the whole truth about this matter under oath." Now that these Democrats have reached a verdict, they want to hold the trial.

If anyone had any doubt about this criminalization game, it should have vanished late Monday with Senator Leahy's suggestion that Ms. Goodling's decision not to testify implies that she's done something wrong. "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," Mr. Leahy said.

But the only thing the American people might wonder about is why the Senator, a lawyer who should know better, has seen fit to bully an individual for doing nothing more than invoking her Fifth Amendment privilege against self-incrimination. Mr. Leahy's public smear prompted a rebuttal from Ms. Goodling's lawyer, John Dowd, who reminded the Senator that "the Fifth Amendment protects innocent persons who might otherwise be ensnared by ambiguous circumstances, as much as it protects those who may have done something wrong."

Count Ms. Goodling's silence as one more unintended consequence of the Scooter Libby case. Mr. Libby made the mistake of cooperating with the investigation into a leak he had nothing to do with, and he later found himself charged with perjury based on little more than conflicting memories of who said what and when. The prosecutor never even charged anyone for the leak that started it all.

There's no apparent underlying crime in this "scandal" either, but we'll bet more than one Democrat will soon be calling for a "special prosecutor" to investigate it nonetheless. The New York Times has already floated the idea, as usual. As Mr. Dowd put it in his letter to Mr. Leahy: "The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Lewis Libby."

If the probing Senators want to know why lawyers can't in good conscience advise their honest clients in government to answer Senate questions, they should look first to the bitter climate their own habits have created.