Speaker Nancy Pelosi

U.S. House of Representatives

Conyers & Sanchez Write to Goodling Attorney on Testimony

April 3, 2007
From the Judiciary Committee:

Conyers, Sánchez Call DoJ Official Monica Goodling for Interview

(Washington, DC)- Today, House Judiciary Chairman John Conyers, Jr. (D-MI) and Subcommittee Chairwoman Linda Sánchez (D-CA) sent a letter to the Attorney General's Special Counsel and White House Liaison Monica Goodling, through her attorney John M. Dowd, requesting her cooperation in closed-door interviews in connection with the ongoing US Attorney scandal. Dowd sent a letter last week to House and Senate leaders advising them that Goodling would invoke her Fifth Amendment privilege in response to such invitations; however, the two lawmakers argue that previous Supreme Court rulings require individuals to respond on a question-by-question basis and a closed-door interview could relieve the need for further, public questioning should she volunteer to participate.

Full letter in the extended entry:

Dear Mr. Dowd:

We are in receipt of your letter of March 30, 2007, requesting that we communicate with you, rather than the Department of Justice, regarding the House Judiciary Committee's interest in questioning your client, Monica Goodling, Esq.

On behalf of the House Judiciary Committee's Subcommittee on Commercial and Administrative Law, we write to request that your client, Ms. Goodling, voluntarily appear to be interviewed by our staff in the next week and to discuss the justification for her apparent decision to invoke her Fifth Amendment privilege to questions relating to her role in the termination of several United States Attorneys and the Department's response to requests by the Congress for information relating to the terminations.

We have reviewed Ms. Goodling's declaration and the letters you sent to us and Senator Leahy, Chairman of the Senate Judiciary Committee, and we are concerned that several of the asserted grounds for refusing to testify do not satisfy the well-established bases for a proper invocation of the Fifth Amendment against self- incrimination. In addition, of course, the Fifth Amendment privilege, under long-standing Supreme Court precedents, does not provide a reason to fail to appear to testify; the privilege must be invoked by the witness on a question-by-question basis.

The interview we seek could obviate the need to subpoena Ms. Goodling and require her to appear at a public hearing and require her to invoke the privilege to specific questions. We believe that such a proceeding, consistent with the Constitution and Supreme Court precedents, would permit the public to see and hear the specific questions to which Ms. Goodling is asserting the Fifth Amendment privilege against self-incrimination and to permit the Congress and the public to draw appropriate inferences from her invocation of the privilege and the Department of Justice's failure to insist that she waive the privilege. See Baxter v. Palmigiano, 425 U.S. 308 (1976); Brinks, Inc. v. City of New York, 71 7 F.3d 700 (2d Cir. 1983); United States v. District Council of New York City, 832 F. Supp. 644 (S.D.N.Y. 1993) [where the court upheld the position of the Department of Justice that adverse inferences should be drawn in a civil case against an employer for the invocation by its employee of his Fifth Amendment privilege].

Most of the assertions in your letters to Sen. Leahy and in Ms. Goodling's declaration do not constitute a valid basis for invoking the privilege against self-incrimination. The fact that a few Senators and Members of the House have expressed publicly their doubts about the credibility of the Attorney General and the Deputy Attorney General in their representations to Congress about the U.S. Attorneys' termination does not in any way excuse your client from answering questions honestly and to the best of her ability. Of course, we expect (as we are sure you do) your client to tell the truth in any interview or testimony. The alleged concern that she may be prosecuted for perjury by the Department of Justice for fully truthful testimony is not only an unjustified basis for invoking the privilege and without reasonable foundation in this case but also so far as we know an unwarranted aspersion against her employer.

Even with full Court-ordered immunity, a witness is required, under penalty of perjury, to tell the full truth. As we are sure the Department of Justice, in particular, would agree, it would be extremely poor public policy if a witness were permitted to be excused from testifying simply on the basis of her concern that truthful testimony would not be credited by responsible prosecutors and that she could be subject to an unwarranted perjury prosecution. Neither the Department nor the Congress could operate properly if witnesses were free to disregard their duty to provide truthful testimony on this basis. In any event, it is particularly inappropriate in this situation, where the Congress makes no prosecutorial decisions and any decision to prosecute would have to be made by the Department of Justice, which employs your client.

The references in your letters to Mr. Libby and Mr. Safavian are particularly unwarranted and inappropriate. Both of those individuals, former high-ranking officials in the Bush Administration, were found guilty beyond a reasonable doubt by juries of their peers, in cases brought by Presidentially appointed U.S. Attorneys, of knowingly and intentionally lying or providing false information primarily to Executive branch agents or officials. Neither matter involved truthful testimony by the defendants. Both of them were found to have deliberately misrepresented facts, which we are confident you do not expect Ms. Goodling to do. If her testimony is truthful, she will have nothing to worry about in terms of a perjury prosecution, which, of course, rests in the exclusive control of the Department.

Based in part on what we believe are inappropriate considerations for the invocation of the Fifth Amendment, we seek an opportunity to have the staff question Ms. Goodling, in your presence, in order to make a determination of whether there is any valid basis for her to invoke the privilege in response to specific questions. We note that Mr. Kyle Sampson, the Attorney General's former chief of staff who worked closely with Ms. Goodling on these matters, advised the Senate recently under oath that he knew of no valid basis for her assertion. If there is no valid basis, we will want to afford her an opportunity (as several other Department employees have agreed to take) to answer in a straight-forward fashion in a private, confidential setting all questions relating to her knowledge about the firings of the U.S. Attorneys, the role in these terminations of the White House with which she served as liaison and the Department's explanation about these matters to the Congress.

We look forward to your prompt reply so that we can make the necessary arrangements for the early interview we request, or if there is no agreed interview, to consider the follow-up steps the Committee should take. Thank you for your consideration.





Chairwoman, Subcommittee on Commercial and Administrative Law

cc: Honorable Lamar S. Smith

Honorable Chris Cannon