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CYA at the DOJ

Time for some more politico-legal stuff, it seems.  It's been observed that Republicans campaign on a platform that government doesn't work, and when elected, proceed to prove it.  That was on display again this past week, with the latest botch job from the Gang That Couldn't Keep Their Stories Straight, aka the US Justice Department.  According to this Washington Post story, the government managed to get the longest sentence ever for a tax fraud case -- nine years -- but the judge can't order restitution of $140 million because the DOJ screwed up the plea agreement.  As Doug Berman notes on his Sentencing Law and Policy blog,

So, the lessons of this story are (1) pay your taxes, and (2) the Justice Department under AG Gonzales apparently cannot even write plea agreements without costing the government hundreds of millions of dollars.  (Indeed, a botched plea agreement costing the government $140 million sounds like a very legitimate performance-related reason to take a prosecutor to task.)

While on that latter subject, legal debate has focused on the question of whether Monica Goodling, the DOJ liaison to the White House, can validly claim a 5th Amendment privilege not to testify before Congress.  It turns out that Ms. Goodling was in on the phone call in which Senator Pete Domenici (R-NM) called New Mexico USDA David Igelesias to inquire whether he'd be indicting a certain Democrat before the election.  When told that wasn't going to happen, Domenici expressed disappointment and hung up.  His sagging spirits were reportedly revived several weeks later when he was told that Iglesias had been terminated.

Now, it may be that Goodling's participation in what might be interpreted as an attempt to pressure a USDA to indict someone for partisan political purposes is the basis for her desire to invoke her right against self-incrimination.  (She announced her intent to take the 5th before the store broke about her participation in the call.) Obviously, Goodling has a right to refuse to testify concerning any crime she may have committed.  The argument that her counsel is raising, however, seems to be that she can refuse to testify, not on the grounds that whatever she testifies to will incriminate her for past conduct, but that it could be used in a subsequent perjury prosecution.

It would seem that the obvious way of avoiding a prosecution for perjury would be to tell the truth, but the defense of Goodling's invocation of the 5th centers around the contention that the recently martyred Scooter Libby was convicted not because he lied but because he had a "faulty memory."  (This claim has much more resonance with those who don't know what the elements of perjury are and who didn't follow Libby's trial.)  In addition to posing the spectre that we now live in a country in which every administration is condemned to have a Monica problem, the contretemps raises issues of constitutional law, with Orrin Kerr of the Volokh Conspiracy arguing that this is not a valid assertion of the privilege, and Eric Muller at Is That Legal taking the contrary view

Oh, and while looking up stuff on this I stumbled across a new website, Gonzelez Watch, which is devoted solely to blogging about the AG and his current travails.  I wouldn't put it in your Favorites just yet; I don't think it's going to be around too much longer, given that even the National Review, the house organ for conservative politics, recently announced that it was joining the growing chorus calling for Gonzalez' resignation.  Memo to Alberto:  the Prez was a standup guy for Rumsy, too, up to the very moment he wasn't.

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