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Aide to Gonzales Won't Testify
Counselor Cites Fifth Amendment Right in Refusal

By Dan Eggen
Washington Post Staff Writer
Tuesday, March 27, 2007; A03

Attorney General Alberto R. Gonzales's senior counselor yesterday refused to testify in the Senate about her involvement in the firings of eight U.S. attorneys, invoking her Fifth Amendment right against self-incrimination.

Monica M. Goodling, who has taken an indefinite leave of absence, said in a sworn affidavit to the Senate Judiciary Committee that she will "decline to answer any and all questions" about the firings because she faces "a perilous environment in which to testify."

Goodling, who was also Justice's liaison to the White House, and her lawyers alleged that Democratic lawmakers have already concluded that improper motives were at play in Justice's dismissal of eight U.S. attorneys last year. Goodling also pointed to indications that Deputy Attorney General Paul J. McNulty blames her and others for not fully briefing him, leading to inaccurate testimony to Congress.

Goodling's refusal to testify illustrates the rising political and legal stakes surrounding the removal of the federal prosecutors, and underscores the fissures developing among Gonzales and his current and former senior aides as the attorney general struggles to keep his job.

The decision means a senior aide to the nation's top law enforcement official is in the remarkable position of refusing to testify for fear of implicating herself in a crime. Her lawyer portrays the move as strategic and says she has done nothing wrong.

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The recent revelations about Enron – the hidden debts and offshore subsidiaries, the years of unpaid taxes and the brutal manner in which employees were barred from selling company stock at the crucial moment of meltdown, leaving their retirement packages virtually worthless – have sucked in at least two other major institutions.

The first is Arthur Andersen, the Big Five accounting firm responsible for auditing Enron, which knew of its client's troubles at least as far back as last February but kept defending Enron's erroneous financial statements and even took the extraordinary decision to shred hundreds of Enron documents when it became clear the jig was up. Yesterday, David Duncan, the former Andersen partner who has been blamed for the shredding, refused to testify before Congress, citing the Fifth Amendment. Jim Greenwood, chairman of the House Energy and Commerce subcommittee on oversight and investigations, told him: "Enron robbed the bank, Arthur Andersen provided the getaway car, and they say you were at the wheel."

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[I]n 1892, ... [the Supreme Court ruled that] a person obliged to testify before Congress could never be prosecuted for anything related to his testimony, the court ruled. In later cases, the court softened this rule -- a person forced to testify before Congress could be prosecuted so long as the testimony and all evidence found as a result of that testimony were excluded.

The Supreme Court has never explained where this ban on other evidence is to be found in the Fifth Amendment's words. Nor has the court explained how such a ban fits the general innocence-protecting idea that justifies the Fifth Amendment in the first place.

This longstanding reading of the Fifth Amendment has warped the separation of powers. When Congress needs facts to determine whether existing laws are working and how they might be fixed, it often meets a Fifth Amendment stone wall. Congress can find the truth only if it gives witnesses sweeping immunity that then hinders the executive branch's prosecutorial function.

Thus, when Congress sought to investigate the Iran-contra scandal in 1987, it had to grant immunity to Oliver North in ways that ultimately led judges to overturn Mr. North's criminal conviction in 1989 for obstructing justice and other federal crimes. Although the evidence introduced against Mr. North was reliable, prosecutors could not prove that witnesses against him were not affected by his nationally televised Congressional testimony.

After that fiasco, Congress became cautious in its conduct of important investigations. When Congress sought to investigate campaign-finance abuses and possible Chinese influence in American politics in 1997, it chose not to force John Huang to tell all he knew; such compelled testimony would have shielded Mr. Huang from criminal prosecution. Current Fifth Amendment doctrine thus prevents the legislature from doing its job of oversight and law reform.