Goodling Counsel Memo 04-04-2007 to House Judiciary [ John M. Dowd in re Monica M. Goodling ]
The horses are restless.
The zipper is coming undone.
The bad spots are surfacing.
The war crimes prosecutors are drooling.
America's legal profession and government counsel are imploding.
The hearing hasn't started.
Ref Previous Goodling Counsel Memo.
Anything Dowd gets in re Goodling will be broadly applied to all DoJ and White House counsel. She's not getting immunity; nor is she getting a free pass on questions unrelated to the US Attorney firings.
Unless Goodling's counsel provides comments to the Congress in a signed affidavit, we are inclined to reject outright counsel's representations. Ref Once counsel provides assertions under affidavit, we might examine them with some seriousness. We share our concerns with the recent submittal as a demonstration of the need for Goodling's counsel to show some respect to the Committee ["the tribunal"].
Fatal to Goodling and her counsel's legal position -- and the basis for our concern that counsel's comments to the Committee are misleading -- is this provision which Goodling’s counsel doe snot appear to have fully complied:
 When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes.Goodling’s counsel has not rejected satisfactorily McNult's characterizations. Rather, he's introduced the assertions in the affidavit without a sufficient denial. He's memorialized something not before known outside the Attorney Client relationship.
We judge McNulty's characterization of Goodling as being correct; and that Goodling's counsel -- because of his failure to remove this information from his affidavit -- has ratified (privately, and in effect publicly with is actions) the evidence as being real, not false. There was a material communication between McNulty and Congress which Goodling is concerned about. Whether the evidence is probative, or true is secondary.
However, fatal to Goodling's legal position -- and her counsel's credibly -- are the repeated assertions that there is a problem with McNulty's position; and that this has (absurdly) caused Congress to (more absurdly) arrive at (speculative) conclusions. Yet, Counsel inconsistently argues that there are vague assertions and unspecific things that Congress might be doing. This is not consistent.
Based on information and belief, we judge counsel's statements in writing to Congress to be misleading with the intent to create a difficult line of evidence for the DC Bar and prosecutors to prove the counsel is providing misleading information to the Congress. Because counsel has not rejected the information -- as the DC Ethics rules require -- we hold counsel in a lesser position. Counsel appears to have offered the evidence without adequately impeaching McNulty. This is a fatal flaw undermining any reasonable basis for Congress to trust the veracity and motivations of Goodling's counsel.
McNulty's statements to Congress, in light of counsel's actions, appear to have been taken as true; yet, counsel asserts in writing the opposite. The defies reason. It appears Counsel believes McNulty's version of events is true in re Goodling; but counsel is pretending that the information is false; yet not taking reasonable steps to litigate the supposedly false information from McNulty. Further, by including the information without sufficient impeachment in re McNulty's statements, counsel has disclosed a legal concern outside the attorney-client relationship; yet, counsel has offered this concern as if it were true because, it appears, it is consistent with the client's wishes: The apparent effort to create confusion.
The real questions: It does not appear Dowd is representing only Goodling, but other DOJ Staff counsel which the Committee has not been timely informed. The scope of Dowd’s representation of other DOJS staff counsel clients needs to be examined in light of the disclosures Dowd would have us believe apply tot GOodling; but appear to apply to other DOJ Staff counsel.
It appears Dowd is using Goodling as a test case for all legal arguments the White House counsel, DOJ Staff, and outside counsel might offer on any litigation issue directly or indirectly related to rendition, prisoner abuse, NSA violation, and other illegal unconstitutional conduct.
Thus, Congress is reasonable in questioning the merits of Dowd's statements; and in asking Dowd to assert in writing that the legal positions he is taking are intended to narrowly apply only to Goodling and not as a precedent for any other DoJ or White House counsel involved with the larger alleged war crimes, rendition, prisoner abuse, FISA violations, illegal warrants, and other unconstitutional conduct connected with the President and legal counsel.
___ What evidence is Dowd relying on that is consistent with other client's interests; but these clients have not been timely reported to Congress as being the motivation for Dowd's statements to the Committee?
___ How much information and legal argument is Dowd providing to Congress not to assert a legitimate legal position, but to act as the first test case for the broader legal community illegally confronting the Rule of Law?
___ To what extent is Dowd's legal argument not designed to advance a reasonable legal argument, but to test the timeliness of Congressional Staff counsel; and detect who inside the White House is leaking information outside the GOP?
 When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes.
We share the basis of our concerns below.
The letter has too many fanciful notions to be believed. It appears to be designed to create confusion not ust for COngress, but attorney misconduct investigators with the DC Bar. As written, and appears to have been the intent, it is difficult to pinpoint what Dowd does or does not reasonably know to be true. [ Comment 2 ]
We recommend the Congress ask with precision what Counsel is or is not asserting as true, a belief, or what he is or is not saying to determine whether Counsel is interested more in create a defense for apparent misleading statement to Congress about his client; or whether there is something else going on with Dowd's convoluted memorandum. All staff counsel comments from now on should be provided in the form of an affidavit, not a letter; and with the understanding that counsel's comments shall be xamined in light of the DC etchis Standards.
There are not DC Ethics standards that apply to the Congressional Committee. Any effort by Dowd, DoJ, or the President to pretend that Congress -- as a branch of government -- must comply with the DC ethics standards is meaningless. The DC Bar has no oversight power over Congress as a branch of government. The DC Bar may only review individual members of the bar.
We the People did not delegate to Dowd or the DC Bar oversight of Congress. Congress is a self-governing organization which has the reverse power: The exclusive power and oversight authority to review the DC Bar and Dowd's representations to Congress.
Widening the Inquiry Beyond US Attorney Firings
Goodling's memorandum through counsel to the Committee becomes a secondary line of evidence for the Committee to review. The issue is less with Goodling and the Department of Justice than with the larger recklessness this American Bar Association is alleged to have been complicit and not timely regulated as might be expected of a self-regulating organization.
The Congress has a role, duty, obligation, and interest in evaluating Wade's Memorandum in the context of the apparent breakdown of discipline within the DC Bar and American Bar Association, as evidenced by alleged widespread White House and DOJ Staff counsel reckless disregard for Geneva, US Constitution, and the Attorney Standards Conduct when putting these alleged war crimes and illegal procedures into effect in re rendition, prisoner abuse, war crimes, warrant violations, and usurpation of Congressional and Judicial Power.
Staff counsel inked with Goodling, the White House, and DoJ are allegedly working in concern. These are issues which Congress alone has the exclusive Article I power to examine in any level of detail, precision, and focus Congress alone decides. Whether the ABA remains a self-governing organization; or is forced to assent to intrusive audits is secondary.
GOodling through counsel's memorandum has raised a number of issues and questions unrelated to the US Attorney firing; and warrant review by the Judiciary Committee on the effectiveness of DOJ Staff counsel to oversee litigation.
Goodling as US Attorney supervisor should be able to oversee outside counsel. The Memo from Goodling through outside counsel indicates GOodling has a problem with counsel oversight.
___ What procedures did the Executive Office of US Attorney promulgate in the US Attorney Manual in re counsel oversight?
___ Who in DoJ related to Goodling worked with the media relations firm who developed these training videos for EOUSA; and what methods did Goodling use to evaluate the suitability of these work products in meeting the US Attorney training and oversight requirements she was delegated?
___ Why is Goodling apparently incapable of applying these oversight procedures to outside counsel in re her own litigation?
___ Despite a personal interest in the outcome of this litigation, Goodling appears to have withdrawn and is not able to apply the ODJ Staff counsel lessons in re overseeing US Attorneys; how does anyone expect to believe that Goodling was effectively enforcing these oversight requirements when it came to overseeing and monitoring US Attorneys under her department?
Goodling's counsel memorandum make incontinent arguments, and is internally inconsistent.
Rather than focus on textual references to support his assertions, he's used meandering arguments which might not pass muster with a law school professor. Wade is encouraged to seek remedial writing skills training.
The letter is not persuasive, and doe snot address the key problem confronting Goodling: She has issued statements in e-mails unrelated to the US Attorney firings, but related to other DOJ and White House procedures of interest to Congress.
Goodling's counsel has inappropriately issued a letter to Congress suggesting the inquiry was inappropriate. This accusation is presumed to attach to Goodling; and the Congress may inquiry of Goodling this issue and accusation leveled at Congress.
Counsel fails to discuss the other legal issues which Members of Congress have not disclosed. Counsel has not appropriately enforced any DC Bar rule. Rules cannot be prospectively enforced for speculative, future conduct.
The memoranda leaves counsel and his firm in a lower standing with the public and raises doubts about the oversight and peer reviews Wade's firm conduct before issuing memoranda for public consumption.
The cited DC Bar Opinion does not attach to a Committee, but applies through 3.3 to Goodling’s counsel. [ Discussion, Details ]
Goodling's Counsel Fatally Undermines DoJ Staff Counsel Arguments In Military Commissions Act
Geneva requires prisoners of war to be afforded all privileges afforded to similarly situated prisoners and defendants. Goodling's Memo to the House Judiciary Committee is a stark contrast between the legal process DOJ Staff counsel expect to be afforded to them; with the procedures Staff Counsel should be available to prisoners of war.
Geneva is a requirement. Staff counsel have no legal foundation to assert in open documents that they are entitled to rights; yet, have us believe that the legal justifications to deny prisoners of war their Geneva Conventions are lawful.
All public comments Goodling and her counsel make should be contrasted with the abuses inflicted upon prisoners of war in volition of the Geneva Conventions denying prisoners of war the same privileges afforded to similarly situated defendants. Gooding's public statements through counsel contrast with the procedures Goodling apparently endorsed in re DOJ Staff opinions on Eastern Europe and Guantanamo prisoner of war procedures; and were coordinated with the Attorney General, other DOJ Staff, White House Counsel and the President. They key: Goodling's e-mails in re the US Attorneys shed light on the coordination within the DOJ, White House, and outside counsel on legal matters not isolated to the US attorneys, but touching the rendition, prisoner abuse, warrant violations, and other illegal conduct. Counsel cannot argue that Congress, in reviewing Goodling’s e-mails with her, has a narrow interest in looking only at the US Attorneys. Goodling’s assertion that she will not respond to questions about the US Attorney firings does not address the larger pattern of conduct unrelated to the US Attorney firings in re prisoner abuse, Geneva violations and other illegal conduct alleged to have been coordinated by Goodling using the same e-mail systems. Goodling is given fair notice that all things any prisoner of war has endorsed, foreign fighters may lawfully impose on any DoJ Staff counsel in retaliation for the illegal Geneva Violations.
Counsel Memoranda is evidence of the Geneva privileges and protections which all Prisoners of War have been illegally denied.
All legal arguments Goodling’s counsel is making are things that Geneva says should be afforded to prisoners of war.
___ Why is Goodling’s lawyer publicly showing that DOJ Staff counsel positions in re the Military Commissions Act are not legal?
Geneva requires the prisoners of war to be able to do what Goodling’s counsel is doing” Openly make a legal argument. It is secondary whether the arguments are valid; whether there is or is not evidence; or whether the target of the inquiry is or is not guilty.
Ref Counsel has provided no compelling reason why Members of Congress may not ask questions about the e-mails Goodling personally wrote, are part of the public record. Members of Congress are not required to confine their questions to any narrow list of questions that Goodling has announced she will not respond.
The issue is not the US Attorney firings or Goodling; but the e-mails and the course of conduct the Congress chooses to review. Whether Goodling does or does not want to answer questions about the US Attorney firings is irrelevant: The Members of Congress using open evidence from Goodling may ask her questions about anything unrelated or related to any topic they choose.
Goodling may be asked any number of questions related to the procedures, practice, and other things DOJ Staff involved with the rendition, warrant violations, or Geneva violations; and how Goodling coordinated her communications on these other e-mail issues with the White House. Outside counsel has no basis to assert pre-emptively that the motivations of Congress are questionable when the Congress has not yet shown its cards; nor revealed the larger concne3rs it has with the e-mails in re this President’s unlawful conduct to violate the US Constitution.
The cited DC Rules partially address the legal requirements on defense counsel to cooperate in re 3.3. The DC Bar Rule 31 opinion is advisory, but does not address the requirements on Dowd in re his conduct toward the tribunal.
This letter raises additional 3.3 rule issues previously identified.
Dowd has impermissibly raised questions about the motives of Congress without a reasonable argument why those concerns are valid. It is reasonable and within the proper authority of Congress to review open evidence related to alleged unconstitutional conduct by Goodling to illegally Amend the Constitution.
Counsel and Goodling are free to provide the Committee with a better explanation at an open hearing as to their reasons for refusing to respond to questions. Until counsel and Goodling bring suit against McNulty for his alleged defamation of Goodling, it is reasonable to make adverse inferences:
A. Goodling is concerned that the e-mails implicate her for larger legal issues; and
B. McNulty has correctly reported his concerns.
Counsel has provided no consistent explanation why Members of Congress statements are suggestions, assertions, conclusions, or something else. Congress is open to hearing a better legal argument.
This letter raises doubts about Goodling's legal counsel writing skills. He's repeated several arguments; but failed to cite specific language he's commenting. The letters do not appear to be reasonable representations of Member of Congress assertions, writings, or comments. The letter itself forms the basis to expand inquiry into Goodling's counsel and his motivations toward the Tribunal in re 3.3.
Thank you for your letter. You have misstated the facts.
1. Your client has threatened to not cooperate with Congress. Congress may call any witness. Invoking a 5th Amendment claim against incrimination is not a barrier to appear.
2. The fifth Amendment is a privilege which shall be invoked. It cannot be asserted as a blanket, unilateral assertion that one is immune from appearing or testifying.
3. Your client has suggested -- without any threat from Congress -- that she might be in a perjury trap.
4. If your client is not happy with the representations by DOJ Staff counsel in re what they did or did not testify, that is an issue for your client to resolve with another DoJ Employee not Congress.
5. IT is premature to assert that Congress has formed any judgments about your client’s guilt or innocence. Members of Congress are permitted to take evidence from anyone. DoJ Staff counsel have communicated -- rightly or wrongly, it is irrelevant -- that they received information from your client.
6. Your client is presumed innocent until proven guilty.
7. The scope of the inquiry is unclear. The issue before us is not narrowly confined to the US Attorney firings, but the alleged conspiracy your client self-reported in e-mails related to alleged illegal activity to usurp legislative power. There is no dispute your client knew of this alleged illegal activity. Adverse inferences can be made: Your client was involved with an unconstitutional activity. How that illegal activity occurred is less important than giving all alleged participation in that illegal activity a fair chance to explain to the legislature what happened so that the legislature may make an informed judgment of how to proceed to protect this Constitution.
8. Congress may at any time conduct any inquiry into any lawyer for their alleged illegal activity. It is a concern to any Member of Congress when staff counsel assigned to the President and Department of Justice orchestrate an apparent unconstitutional amendment to the Constitution; but do not comply with the Amendment process. It appears your client well understands this problem.
9. Outside counsel is not in a position to shape, negotiate, or change the Member of Congress perceptions unless your client chooses to provide us with new information. The e-mails are a damning indictment of your client: This is nothing to do with Congress, but what your client has openly commutated to peers in the legal community -- she assented to these alleged acts. That your client fatally document her knowledge of this illegal activity; and the unconstitutional acts which defy the Constitution are not in dispute. Her name is on the e-mail. She was involved. The question before us is what is to be done to ensure this does not happen again. There are talks to overhaul the legal community; remove self-governing provisions; and draft a New Constitution to overhaul the American government. Your client may or may not wish to participate in those discussions. If she would like to have an input, she is free to appear to provide insight into her views on the subject. If she declines to appear to respond to information she openly communicated in e-mails related to this alleged conspiracy, she is free to properly invoke her 5th Amendment privilege where it is appropriate. The e-mails are evidence. Your client may choose not to respond to questions; but she cannot refuse to appear before Congress. This is a misreading of case law.
10. Congress has the power to issue a contempt citation against counsel who engage in frivolous legal maneuvers. The concept of comity and neutrality are expected from legal counsel and public administrations on issues of public policy. The problem before the American people is the prevalence of taking partisan positions on the Constitution; letting the document spiral into disrepair; then pretending nothing can be done. The job of Congress is to review the available information to determine what options existed to solve which problem.
11. Congress is not required to accept funds from your Political Action Committee.
12. Your client may assert her right correctly with each question. You and your client are invited to attend a hearing into a second review to come to an understanding of your legal arguments which apparently defy the law; and are contrary to precedents. If you would like to not appear at this second hearing, you are free to communicate your intention to decline to cooperate with this second hearing.
13. The public does not accept your client’s position. Grand Juries are able to make adverse inferences: Your clients name is on e-mail. These facts are not in dispute. The issue is how well connected your client is to alleged war crimes, prisoner abuse, warrant violations, Geneva violations, and other illegal activity which this President, DOJ Staff and White House counsel are complicity.
14. Your client’s declaration has been rejected as an inappropriate, unilateral assertion of immunity. This is not acceptable. This defies precedent, as fails to correctly invoke the 5th Amendment.
15. Congress has on the table the option to subpoena any counsel, DOJ Staff member, and anyone associated with Goodling.
16. What McNulty did or didn't say has no bearing on whether your client shall respond to a subpoena. If you and your client choose to bring a lawsuit against McNulty for criminal defamation, you are free to do so. However, a failure to take full legal measure against McNulty for things that were supposedly in error, leaves with any reasonable, neutral observer the impression that your client is concerned about something, but does not have the basis to challenge McNulty. You are correct that is i not compelling evidence of guilt to justify a conviction; but it does tip the scales away from Goodling for purposes of impeaching her as a witness. If McNulty's statements were untrue, we would expect to see your client issues a complaint with DOJ OPR and the DC Bar calling for McNulty's investigation. This has not been publicly discussed; the adverse inferences is that there has been no legal action taken against McNulty as would be expected if your client had a genuine believe that MucNulty's allegations about Goodling's involvement with misstatements were untrue. This does not mean your client is guilty; it means that your client cannot claim she is arriving at any proceeding with clean hands. Her name is on the e-mail; Congress did not put her name there. Goodling freely chose to participate in the e-mails. It is a secondary matter whether the DC OR VA bars choose to disbar her.
17. If your client believes that McNulty has lied to the Committee about alleged witness tampering Goodling is reported to have engaged, then you and your client are free to file a criminal defamation suit against McNulty. We see no defamation suit; and the adverse inference is that McNulty has not lied. Again, your client is not guilty until proven innocent; yet, the scale is not in your client's favor.
18. We disagree with your premise that McNulty's allegation are sufficient -- for McNutly, Goodling, or anyone -- to claim that the 5th Amendment privilege is immunity; or that the privilege is an absolute bar to appearing.
19. If you choose to cite case law, you'll have to show that the case law language has been correctly cited; not simply referred to. We need specific language, not a list of numbers.
20. Poindexter as you cite it, is not relevant. There have been no indictments issued against your client; nor has your client been the subject of any investigation into obstruction by Congress. We look narrowly at the issues of the US Attorney firings, the e-mails, and what did or didn't happen; and how the e-mails shed light on the way this President and DoJ staff counsel have interacted on illegal activity. As counsel you are jumping the gun. If you would like to refer to possible hearings that other Committees may have, you are free to raise those concerns then. Now, it is premature to talk about an obstruction investigation. The hearings have not started. It is absurd to contemplate that there has been an obstruction when your Client has not entered the arena, much less thwarted others. Her e-mails remain on the table.
21. North is irrelevant. There have been no indictments. Goodling is not being charged with anything. This is a simple question and answer session. Your defense of Goodling might be admirable if you were to wait until the issue of obstruction were raised.
22. Your client's e-mails show your client was involved with an alleged effort to circumvent the Constitution. The e-mails are fixed and locked. It is too late to invoke a bar to providing information when the e-mal your client created show your client was involved, did participate, and did not remove herself. The e-mails and the law are not in harmony. That your client has a legal problem, or questions the motives of the DOJ Staff leadership is irrelevant to whether Congress can review this issue.
23. You are disingenuous in your assert that Goodling is prudent. If she was, she would not have participated in the alleged illegal activity of this President to circumvent the Constitution. That your client may have defective legal training, or have been quickly given authority she was not prepared to manage is irrelevant. She could have sought counsel's advise before sending the e-mails.
24. Your form not basis to justify confidence in anyone's minds that the House Judiciary have or have not reached any conclusions. You fail to cite any specific evidence that a comment -- which is protected and permitted -- shows that the Judiciary has reached a conclusion. Surely, if the Committee had reached a conclusion, they would not ask your client to appear to possibly change their conclusion. You defeat your argument: Those with conclusions would not think to ask for more information; they would have impeached your client. They have not. Your argument fails.
25. You provide no reasonable basis to have confidence in your argument. That your client may have hired a retarded counsel who appears paranoid; yet, provides funds to both the GOP and DNC through the law firm Political Action committee is curious. You are not doing your law firm any favors. Your firm’s good will is sliding. IN the mind of passive, disinterested citizens, you are engaging in counter productive heavier. Whether this conduct is viewed as dilatory under the attorney standards of conduct is secondary, but your arguments are not persuasive.
26. Repeating your flawed, convoluted arguments does not change the fact that your clients names are on e-mails which the Committee has in its possession. You cite no language that these e-mails were inappropriately obtained; or that anyone has manufactured evidence with your client's name on it. This was freely generated by your client.
27. The Committee is free to make adverse judgments. It appears Goodling is imprudent. She does not appear to be managing this legal matter well. This is not a legal matte which counsel controls; but one that Goodling is guiding. The public can make adverse inferences. Each letter you right is additional evidence war crimes prosecutors may use to evaluate the legal thinking of DOJ Staff counsel. This legal issue is one for your client to manage. This is her case. She is choosing to take you as her counsel along this path. Arguably, she is putting herself before your law firm's professional reputation and good standing.
28. Your citation of the April 3 letter is not credible. You fail to cite specific language justifying confidence that you characterization of the letter should be believed. Please provide a full quotation and avoid asserting something without textual references.
29. You are incorrect in asserting there is or is not a link between the 5th Amendment and criminal activity. The issue before us is the e-mail with your client’s name; and the known illegal procedure which violated the Constitution. These are not in dispute. Your client has not timely removed herself from the alleged illegal violations of the Constitution.
30. You fail to justify confidence that Members of Congress have or have not suggested anything. It is not reasonable, especially lacking any textual reference, that the Senate or House Members of Congress have or have not left any impression. The error is, without a citation, to believe that you have correctly captured the words of the letter. Yet, you assert there is a suggestion without showing why that suggestion is reasonable. Even if the suggestion was there, you provide no textual reference to justify why your view is valid, much less relevant.
31. You contradict yourself. You say that the Committee has reached conclusions; yet in re the 3 April later you change your position suggesting that this is a "suggestion." Surely if something was a suggestion, this is not a conclusion; and if something was concluded, it would not be necessary to qualify that statement with "suggestion." The inconsistency means you cannot reasonably assert that the House has or has not concluded anything; nor may you credibly invoke a DC Bar Ethics Rule in re the Congress or Committee, on a Member of the Bar. The Committee, not a staffer, proposes to subpoena your client. The DC Bar has no authority over Committees, only individuals who are members of the Bar. You defeat your own argument.
32. Assertions based on convoluted arguments is what well captures the Nazi regime under Adolph Hitler. Arguably, you as counsel are incapable of understanding that the decision of Congress is a separate one than the President makes. Whether your office chooses to send more letter, or cooperate is outside the control Congress. Your letter offers nothing new.
32. You fail to cite with any precision why your assertion in re the 3 April 2007 letter is reasonable. Your fail to show why the characterization of the letter should be believed. You do not explain with any precision why your belief about what you believe is a suggestion has any relevance to the law.
33. You are free to invoke any non-legal argument you choose. However, this is less than what is expected of counsel. Again, your client's legal issue is secondary to your law firm’s public relations problem. Your letter and public commentary is not one that inspire confidence in your law firm. You're using non-sense language which does not reflect well on your firm, your partners, or your legal thinking. There are reasonable public discussion about whether you and your firms should be outside counsel.
34. This issue is not whether your client will or will not remain silent; but whether your client will or will not appear. Your argument is circular. You've mischaracterized your client's fundamental position and the Committees concern; then used that mischaracterization to pretend another falsehood. Sophistry does not inspire confidence in your ABA peer rating. Questions about counsel competence.
35. Whether there have or have not been statements on the 5th Amendment does not address the core problem: Your client wishes to assert her right to silence without any appearance. That is not the same. Whether someone does or does not choose silence is a secondary from whether there is a reasonable basis to invoke silence or not appear. There is little relevance to what Conyers said in 1998; nr have you correctly captured the relevance of outside comments to support your position. As a side point, it is arguably unconstitutional, if not illegal to require a Member of Congress to answer for statements they said on the House Floor: The Constitution does not permit it; and even if the Constitution did permit it, it's irrelevant to whether your client's name is on the e-mails she drafted. Smokescreen denied.
36. Your client is in charge of her legal affairs. Your client chose to hire your using funds which remain to be understood. She has no right to decline to appear; she may refuse to answer questions related to the 5th Amendment privilege. Your client is presumed innocent until proven guilty; however, the e-mails fatally show she was involved with illegal Amendments to the US Constitution. The intent was to protect real innocents, not permit government officials to invoke rights which have not been respected. Goodling cannot claim she is innocent when she has not been charged with any crime: She's openly admitted her involvement with the President's illegal usurpation of power. Nobody is charging Goodling with anything; your client has openly incriminated herself. Silence at this point is a smokescreen from the core legal problem your client has: The e-mails show she was involved and did not appear to exercise the required professionalism expected of a VA-bar licensed counsel. This is your client’s case.
37. Your client may be advised not to respond to question. You may not advise her to violate the law; nor refuse to appear. Restatement of law.
38. You assert without proof that Members of Congress have reached conclusion; but you cannot explain why people who have reached conclusions seek to allow input to those conclusions. We can only conclude with what we have; nor with what some wish us to have. Wish is not the same as judgment; the law is not the same as rebellion.
39. Your repeated assertions that the DOJs staff have implicated your client in illegal activity is a matter you and your client need to address with the Executive Branch. This is a separate branch of government. All future references to what DOJ Staff may have done in re your client are a basis to conclude your communications are dilatory. These are not relevant to Congress. [Civil matter outside interest of Congress.]
40. Perceptions are not relevant. The issue is what is in your client's mind with respect to her e-mails. The perceptions are one thing; the e-mails are evidence.
41. You assert Goodling has stated a "valid" predicate for her 5ht Amendment without a credible argument. You have not addressed why a failure to appear is acceptable. You fatally admit on page 3 that "this may be a correct statement of the law" that the witness does not have a "reason to fail to appear". We are in agreement. Excellent. All other comments are arguably dilatory.
42. Your client has attempted to invoke her 5th Amendment privilege to prospectively not appear. That is a plan. Whether you client does or does not appear remains to be seen. Your client upon your advise has issued an affidavit. If you would like your client to do or not do something that would tend to turn the Attorney-Client relationship upside down. The issue is whether your client will or will not appear.
43. Your client may choose to appear and invoke her 5th Amendment privilege. You are in no position to request anything of Congress. Congress may without notice, subpoena your client.
44. It is not clear that a promise to invoke the 5th in re "all" questions in re US Attorneys is valid. There are factual questions in e-mails which your client may be asked to confirm: Did she or did she not issue the e-mail; does she recall making these statements. The question is whether the invocation of her 5th Amendment privilege to questions is or is not related to something that would incriminate her. If she's being asked to confirm the truth of something she is alleged to have said in an e-mail, it can hardly be called a proper invocation of her 5th Amendment privilege when the question relates to whether she was, in fact, the author of the e-mail. If she declines to answer, the adverse inference is that the e-mail with her name on it is from her. We can proceed from there. Until then, your client shall be afforded the fully opportunity to answer all questions about the open evidence with your clients names on it.
45. Your client apparently has no plans to answer any questions about the e-mails. Fine. Then she is in no position to believe that the Congress will honor her request to do or not do anything. Whether she is or is not subpoenaed is not a threat: It is a power of Congress to assert on the judgment of the Committee alone. Goodling's sworn statement does not immunize her from legal proceedings, subpoenas, adverse inferences, or any other things that Congress may do when discussing issues of impeachment, and removal of US government officials.
46. Once your client assents to an administrative hearing, she is allowed to invoke her Garrity and Miranda rights. However, when she does, she is not completely immune. Even if Garrity where invoked, she is still liable for prosecution for perjury. Thus your assertion that she fears prosecution for perjury is meaningless in that even if Garrity were invoked, she should still be subject to prosecution for the thing your client fears: Perjury.
47. Your client may not invoke privilege during an administrative hearing, especially when the provisions of that hearing are related to rule making. However, this is not an administrative hearing: It is something outside the protections afforded to witnesses under administrative rules. Nobody is threatening your client with termination; your client is threatening not to fully cooperate. Employers are gagged and restrained; Congress is not an employer, it is a separate branch of government.
48. It is within the power of Congress to evaluate each of Goodling's responses. If she would like -- despite e-mail evidence showing she was involved with alleged illegal activity to isolate the Constitution -- to invoke her 5th Amendment privilege on issues that are not related to any criminal activity, that is a subject for the Congress and US Attorney to discuss. If and until that happens, that is speculative.
49. You fail to cite any language showing that the Congress has suggested your client ignore, disregard, or blow off your legal advise. Again, this is a chance for your law firm to shine, but you cite nothing.
50. You stated, "essentially encourages" which is not the same as an assertion. This again defies your assessment that Congress has concluded something. If Congress concluded anything, then you would not use the word "essentially"; you would say it with precision. Conclusions, when they "essentially' something are not conclusions, but vague guesses. Not the basis to invoke a claim of an unfair tribunal. The error is to assert a possible problem with the tribunal; but in the same letter provide inconsistent characterization raising substantial doubts about the merits of your original assertions. This is a credibly issue for counsel to address with other clients and of little interest to Congress.
51. Congress may force your client to appear. The Constitution does not delegate any power to a lawyer to defy Congress. She may agree to not answer a narrow question; but she has no power to pretend that Constitution confers upon her any power to ignore the Congress. Goodling is not a fourth branch of government; she is an employee, in need of legal assistance, and has e-mails that fatally link her to alleged illegal conduct by this President.
52. You assert that Congress has asked your client to do something that is contrary to legal counsel or her legal interests. You cite nothing to justify your conclusions. Your assertion is dubious. Thus, your premise that one flawed argument is to be exchanged or compared with a second speculative outcome is at best a dubious proposition; at worse, it is evidence your firm release absurd memoranda in written statements for public consumption without consideration to the impact this letter might have on your firm’s goodwill, standing, and reputation. This is quite amusing. Again, you do not appear to be serving your peers and partners at your law firm. Perhaps they may wish to share with you their private concerns about the tone and tenor of your letter. Have you considered listening better during CLE on writing skills? Law practice management does encourage counsel to brush up on writing skills, especially when that material might be used for promotional purpose of for public consumption in the open media directly or indirectly related to advertising and information products. Good counsel will craft good memoranda and expand the circle of goodwill. Poorly written memorandum, poor public relations. Irrelevant to Congress. Problem for senior counsel and partners to review when deciding who to ask to stay or leave during merger discussions with outside counsel.
53. You assert, without proof, that Congress, in requesting Goodling's appearance, is engaging in conduct that is "outside this Committee’s legitimate investigative powers". This is an unfounded assertion. The issue of the Committee Concern is secondary to the e-mail: Congress may review that issue. To assert that calling the authority of that witness is "outside" a "legitimate" instigative interest is unfounded. The Witness had the choice, prior to crafting the e-mail, to not create evidence, and silently cooperate with her alleged co-conspirators. She chose to leave evidence; and Congress chooses to review that evidence.
54. It is arguably reckless for staff counsel working for the Department of Justice to argue the "sole legitimate purpose" of Congress to review or not review any thing or subject. If you would like to embarrass your client with more non-sense letters, that is your client's problems; however, it is absurd to blame the Congress for your arguably defecting writing skills. Memoranda attached to Goodling in re Department of Justice comity, or lack thereof, on legal motivations of Members of Congress. Assertion fatally opens door for Congress to inquiry into Goodling's conduct raising the same issues and doubts in minds of Members of Congress in re rendition, warrant violations, prisoner abuse, and other things GOodling and the White House have allegedly done to circumvent the Constitution. Those barn doors can be annoying, especially when they’re on fire, and the horses are running madly around the internet. "Oh, did you see the memo?" "From Goodling?" "The E-mail?" "Got it." "Forwarded to war crimes prosecutor." "Cheers." "Lunch?" "No, I've got an early metro." "I'll send you a blackberry." "You're so kind." "Ta Ta." "Don't send me those kind of e-mails. Ever." Too late. Congress has them. And so do We the People. And the German and Italian War Crimes prosecutors. Can't put the genie back in the bottle, Maj. Healy.
55. You premise -- that Congress asserting power and asking questions would "humiliate" your client -- is absurd. This is speculative. The model rules are only relevant to discipline counsel for this offending conduct; not to pretend that this might occur as a basis to assert one cannot be subject to lawful inquiry. Your client's e-mails are an embarrassment to her and her judgment. She has the opportunity to remedy the humiliating impression your client left in the e-mails.
56. You fail to justify win the minds of anyone why your characterization of what a "sole" or "legitimate" purpose of Congress or a committee is in terms of inquiry.
57. Your client fatally disclosed her thoughts in the e-mail. There is nothing new on the table other than your client’s words, and what hidden information Congress has that your client does not know about. Your assertion of what Congress is going to do is wishful thinking devoid of reality, beyond what is reasonable. Congress has not shown its cards; we cannot pass judgment on what has not happened, only what is in the e-mails. No commentary from your client means the adverse inferences remain reasonable. That your client and DOJ Staff counsel are not on the same page is a management issue, not a relevant fact the Supreme Court need consider. Congress has the power to examine what is visible and exposed; whether something new surfaces is secondary. Watkins is not relevant.
60. This President has engaged in war crimes, but the GOP Senate has with DOJ Staff counsel been complicit with inaction. Indeed, there is ample evidence that there have been fundamental abragations of the Congress. This Congress has a chance to change that and protect the document, not just We the People. It is foolish for you as counsel to say that it is "difficult" to imagine something, when the evidence of GOP recklessness his high; and the DOJ Staff counsel incompetence is pervasive. We the People expected this American legal community and the DOJ Staff to defend this Document, not do as Goodling appears to have done: Let it spiral into disrepair, ignore it, then illegally change it without a required Amendment.
61. The duty of counsel to uphold the Constitution is one that Goodling appears to have neglected recklessly. If you as counsel would like to pretend that these war crimes your client is alleged to be involved with are difficult to imaging, then by all means it is time to expand the Congressional inquiry to examine things for the sake on one guiding principle: TO protect the Constitution. The Supreme Court surely understands that requirement; whether they protect the document is a dubious proposition in light of their refusal to strike down illegal Acts of Congress. But we let the Justices' impeachment and war crimes tribunal deal with that. Today, we focus on Goodling and her alleged conspiracy to violate the Constitution, ignore the Supreme Law, and implement unconstitutional changes.
62. It is absurd, and arguably evidence that you have been living in a cave when you say, "It would be difficult to imagine a ore fundamental abrogation of this Committee’s duty". Duty is not a standard alleged criminals can assert as a requirement on others, especially when alleged criminals have been reckless in performing their basis duty: Protecting the Constitution from domestic enemies. You insult your legal profession and your legal position before the DC Bar by pretending that the long string of abuses have not been connected with your profession; or that those in the legal community have refused to uphold this document need "Protection" of the Committee. No, they are subjects of the Committee review: Are they or are they not rebels against the rule of law?
63. It is absurd for DOJ Staff counsel to invoke the DC Bar ethics rules. Your client is under the VA Bar. Whether the DC Bar has or has not issued ethics is irrelevant to whether your client is meeting her Virginia Attorney standards of conduct.
64. These are the duties which apply to Goodling’s counsel: Ref 3.3 is attached through 3.9.
65. Contrary to your assertion the opinions are advisory as they relate to the Model Rules.
Opinion 31: Lawyer's for Congressional Committee - Summoning Witness Who It is Known Will Decline to Answer Any Questions on a Claim of Privilege. DR 7-106(C)(2), EC 7-10, EC 7-14, EC 7-25
Counsel Has Fatally Opened the Barn Door
66. This arrogant counsel for Goodling dares to cite the Model rules as a barrier on Congress. Yet look at the requirements under DR-107 apply to Goodling’s counsel. These rules can only be applied once the lawyer has violated them; nor as a prospective shield and defense of what might possibly happen. This is sophistry. That a Member of Congress staff counsel "might" violate them is speculative and irrelevant and a smokescreen.
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.82
(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.83
(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused;84 but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
(5) Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.85
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.
(7) Intentionally or habitually violate any established rule of procedure or of evidence.
67. Arguably, this counsel has violated each of the provisions the subject of DC Bar Option 31.
68. Not only has counsel not provided any information that is helpful, but the citations used are contradictory to the positions counsel has taken in re 107.
69. The Rule 107 does not apply to Staff Counsel in Congress, it applies to Goodling's counsel who may be called as a witness.
70. This lawyer has asserted that he doe snot view the inquiry as being just. The practice of the bar is to cooperate with Congress; not make excuse to assert immunity from appearing.
71. The invocation of the privilege must be correct; Goodling's counsel, may file a complaint with the DC Bar who may review these matters. Until then, the Congress -- not counsel -- is in charge of the proceedings.
72. Maybe when you read the Constitution you'll have a legal foundation to assert your DC Ethics Rules have any relevance. Until then, you letter insults your peers on the DC Bar.
73. If Goodling's counsel would like to start invoking the Model Rules, then it is a duty of Goodling to decide whether she can or cannot trust he counsel to fully comply with the Model rules.
74. Counsel fails to reveal that is was counsel, who defended the Air Force office in re Iran Contra was involved. Iran Contra investigations resulted in convictions. Witnesses did appear and did testify.
75. There is no an absolute bar to appearing; nor does an assertion of immunity by a prospective witness mean there is a bar to all questions or inquiry.
76. Goodling's e-mails are open. They are part of the public records. If Goodling would like to respond to questions about those public e-mails she may refuse; however, if there are other questions which related to factual i information in the e-mail, Goodling unless she shows there is a reasonable basis to believe she will be prosecuted for confirming a fact, can be asked to testify.
77. Goodling has stated she will not answer questions bout the US Attorney Firings. Fine. Congress may ask her questions about anything else raised in the e-mails. Counsel has provided no reasonable basis to justify confidence that Congress will only do or not do something; or that Member of Congress do not have other information outside the e-mails related to other issues above and beyond the US Attorney firings.
78. Counsel and DoJ have no basis to assert whether the Member of Congress inquiry into the e-mails is or is not valid, appropriate. The e-mails form the basis for Members of Congress to inquiry into many things other than the US Attorney firings.
79. Congress may call Goodling to respond to questions. The issues in the e-mail are not narrowly tailored to the US Attorney firings; but include other things which the Congress is not required to pre-coordinate with defense counsel or the witness.
80. Let’s have an open discussion of what Counsel is arguing. The arguments are not valid. At best, the DC Bar Ethics rules do not apply when the issue is not the legal counsel, but the e-mails.