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If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, March 31, 2007

Administrative Hearing Trumps 5th Amendment Claim

Privilege against self-incrimination does not block administrative proceeding - Hoover v. Knight, 678 F.2d 578 (5th Cir. 1982)

Ref Check out the TERESA G. HOOVER case in re Monica G. Goodling.

Ref GOodling can't invoke the 5th during an administrative hearing.

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DoJ and Goodling can't have it both ways. They've argued that the Congress must assent to rules and limited disclosure. In effect, House Judiciary has assented to engaging in an administrative review, not a legislative hearing. DoJ, because it controls whether ther eare or are not revelations of the hearing, has accepted that Congress is engaging in an administrative review.

Hoover v. Knight, 678 F.2d 578 (5th Cir. 1982) is fatal to Goodling's 5th Amendment claim. Once Goodling asserts that she will not testify in any and all hearings, including administrative, it is permissible under the law to use her silence against her.

DoJ fatally got Congress to agree that the terms of the review were administrative. Goodling, under Hoover, may not claim the 5th without adverse inferences being made. Had DoJ wanted a different conclusion, they should not have agreed to conditions, terms, and non-disclosure terms which would, in effect, seal Goodling's appearance before and administrative hearing.

Once DOJ got Congress to agree that the hearing for Goodling and others would comply with administrative procedures, Goodling may not lawfully invoke her 5th Amendment claim, yet still explain Hoover. Goodling wants it both ways; she can't, and DoJ has undermined her defense in re Hoover. She shall testify; or there shall be adverse inferences made about her silence during all administrative hearings this House or Senate Judiciary conduct under terms which DoJ controls.

DoJ and Congress have agreed this is an administrative hearing; all 5th Amendment claims in re Hoover compel Goodling to testify; or adverse inferences may be made: Her silence in an administrative hearing is evidence she is not fully cooperating, and she may be lawfully impeached. Once impeached she cannot be pardoned.

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People are missing the big picture: This isn't about US Attorney firings (a symptom), it's about part of the puzzle of this Administration to illegally amend the Constitution, and remove the Senate from their Constitutional role.

Once DoJ sets conditions on Congress how this review will take place, and Congress agrees, we're not in a legislative hearing, but an administrative review of who has illegally violated the Constitution.

How they did it; and whether the US Attorneys were or were not fired is secondary. There were planning documents to put this into effect. Goodling may or may not want to point the way to where these planning documents are.

However, given the e-mails we have, it's clear in step 4 of the firing plan that the President, Attorney General, and White House counsel would have coordinated on the work flows to process the necessary paperwork to implement this illegal plan: AN effort to avoid direct Senate confirmations as required under the Constitution. Indeed, the US Attorney firing is a symptom; but the larger issue: Until there was a removal, the President could not directly appoint or circumvent the Constitution.

Goodling's silence is not related, in my view, to only the illegal retaliation against US Attorneys, but the larger documentation that would have supported the efforts to violate the Constution in many ways: Prisoner abuse, ignore Geneva, ignore the warrants, and fire US Attorneys. These are symptoms of the GOP Senate assenting to having their rubber stamp removed; and the President illegally usurping power to put himself above the constitution.

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Ref I appreciate the optimism that some in the Congress hope to do the right thing by having a negotiation and interview with DOJ Staff. However, there needs to be a backup plan in the event, as appears to be the case, Congerss messes this up.

Rightly or wrongly, impeachment is off the table. Indeed, the DNC may have thrown the RNC a bone. I hope the DNC doesn't make it a habit of throwing bones instead of throwing the book. Once impeachmen tis "off the table," few in Congress can justify what they're really going after: If they find the President has violated the law (again), what are they going to do about it? They've answered the question: Not impeach.

Time to develop a backup plan: What will be done to fully assert the law against Members of Congress who refuse to see this President and Membes of Congerss have collectively agreed not to enforce the COnstution; and assented to illegal amendments to the Constitution.

We don't need more tesetimony; we need to seem some consequences for what has happened: Mmeber of Congerss and Executive Branch joing agreement to ignore the Constution. Who needs hearings when the prosecutions need to start. The State Attorney Generals have the power to prosecute staff counsel assigned to their state attorney disciplinary boardes; or who are regulated by their states. If the US Government will not timely assert the law to compel legal counsel to comply with their oath of office and defend the Constution, then the issue isn't US Attorneys, but Member of COngress refusal to assert their oath to prosecute their peers in the legal profession.

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Ref TItle 5

Ref Congress is illegally assenting to DOJ/Executive Orders that information be kept secret. Executive has no power to hide, or expect discretion, in re information from Congress or the public once it leaves the Executive and goes to another branch of government.

Why is Congress, a separate branch of government, assenting to the Executive Orders in re Administrative hearing; but not preventing Goodling from invoking 5th Amendment:
every portion of every meeting of an agency shall be open to public observation.

Goodling can't have it both ways: Assenting to rules which bar public disclosure -- in effect creating an administrative review -- but saying, despite the secrecy, she cannot be compelled to testify.

No way. Either:

A. Goodling is under examination in an administrative review; and she cannot invoke her 5th Amendment privilege; or

B. Goodling is under examination in a legislative review; and Congress has no power to invoke secrecy, or assent to any Executive Order -- it violates the Separation of Powers.

Goodling has no legal foundation to argue she can invoke her 5th Amendment privilege during an administrative hearing.

Once DoJ agrees with Congress to conduct a joint administrative hearing -- as it has done by imposing terms on the Congress -- the witnesses have assented to an administrative hearing.

If DoJ does not want the rules related to an administrative hearing to apply, then DoJ will have to avoid all investigation which is prohibited. Once illegal activity has been alleged, and there remain grounds for an investigation into criminal activity, the President has no power to tell the US Attorney, DOJ OPR, or DOJ IG to not review the issues.

Even when Goodling goes on "administrative leave," she remains subject to rules related to administrative hearings. She may not invoke her 5th Amendment right during an administrative hearing.

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___ What is the plan of DOJ IG and DOJ OPR to conduct an administrative review of Goodling for purposes of evaluating whether evidence should be forwarded to teh DC and State Disciplinary Board for her disbarment?

___ When will DOJ OPR and DOJ IG report their findings to the US Attorney?

___ When will members of Congress ask DoJ IG and DOJ IG to conduct an administrative review of Goodling?

___ Is there a reason, in the absence of the required AG filing of a decision not to enforce the law against DOJ Staff in re unconstitutional/illegal conduct to circumvent the Constitution, that he has not provided the required Title 28 exception report?

___ When do Members of Congress, in the wake of "no exception report" from the AG in re his refusal to enforce the law against DOJ Staff, plan to inquire into the missing Title 28 exception reports which the AG has not filed?