A sounder basis for taking the Fifth

April 5, 2007, 1:42 AM UTC

When attorneys for an aide to Attorney General Alberto Gonzales said last week that she’d invoke her Fifth Amendment privilege against self-incrimination rather than testify before the House Judiciary Committee, their four-page letter seemed to pose a novel basis for the plea: her fear of a bad-faith prosecution for perjury even if she testified truthfully. In subsequent media coverage, legal experts around the country wondered aloud and in print whether fear of such a “perjury trap” was a proper basis for Monica Goodling’s taking the Fifth, as did the committee’s chairman, John Conyers. After all, every innocent witness who testifies truthfully runs at least the theoretical risk of becoming the target of a bad-faith perjury prosecution; if that were enough to invoke the Fifth, anyone could do it whenever he wanted.

But in Dowd’s second letter (available at end of post), faxed to Conyers on April 4, Akin Gump attorney John Dowd makes clear that everyone really should have read Dowd’s first letter a little more carefully. In a little noted paragraph on the second page of that letter he had written that a “senior Department of Justice official has privately told Senator Schumer that he (the official) was not entirely candid in his report to the committee, and that the official allegedly claimed that others, including our client, did not inform him of certain pertinent facts.”

In his second letter Dowd highlights that paragraph and argues that the client, because of that circumstance, has a good-faith basis for fearing that some prosecutor might contemplate bringing charges against Goodling like “obstruction of a Congressional investigation” or “conspiracy to make false statements” or the like (whether or not those charges would be justified). These threats form a much more mainstream grounds for her pleading the Fifth.

They also leave the committee with a realistic next step to take if they think Goodling’s testimony is important enough: they can grant her immunity from prosecution for those offenses if she agrees to testify truthfully. (This had been the other odd thing about invoking the 5th solely to avoid a perjury trap: Investigators would have no conceivable way of circumventing the privilege. They could not grant immunity against a future perjury prosecution, since that would amount to an invitation to lie.)

Here is the full text of the second Dowd letter in PDF format.

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