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Tuesday, April 03, 2007

Goodling Incorrectly Pretends Congress Has Executive Power

Goodling is arguably delusional. The issue is not whether Goodling may or may not be fired for testifying; but whether Goodling may or may not decline to testify because of speculative legal consequences. She cannot.

Goodling may not threaten non cooperation as a starting position to secure immunity. Goodling appears to have incorrectly relied on a misreading of Garrity to invoke a fear of prosecution of perjury. However, fatal to Goodling's written assertion in her affidavit, Garrrity specifically permits prosecutors to use evidence in re perjury even after Garrity is invoked.

It appears Goodling's defense counsel used the wrong terms in the signed affidavit, and has fatally asked Goodling to sign a written affidavit which binds Goodling to a defense which falls under one of the exceptions of Garrity. Even if Garrity were applicable -- which it is not -- Goodling has fatally asserted she fears prosecution for perjury, something Garrity does not provide any protection, even if properly invoked.

Goodling's affidavit it evidence that she's attempting to pick and choose from Garrity to avoid, as an employee, from cooperating with Congress. Garrity does not permit an employee to refuse to cooperate with Congress over matters publicly disclosed in DoJ and White House e-mails; Garrity is meaningless for Goodling in that it only prohibits employers from threatening employees with termination if they refuse to testify about department rules and compliance programs.

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Goodling misapplies Garrity:
Our question is whether a State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee. Ref

Goodling in inapposite:

___ Goodling is not being threatened with prosecution for providing any evidence; she has been asked to voluntarily appear to answer questions. We do not know the questions Congress may ask; and can only speculate what responses Goodling might provide. It is speculative and irrelevant that Goodling's responses might be incriminating; or that Goodling might fear something;

___ However, Goodling is not free to use a speculative fear that she is worried about prosecution as a barrier to appearing. Goodling may not use her fear of legal consequences as a legal basis to not fully cooperate with Congress

___ Contrary to Garrity, Goodling not the employer has made threats. Goodling is free to invoke her 5th Amendment claim to refuse to answer a question;. Garrity prohibits employers from threatening consequences for failing to cooperate; Goodling is threatening as an employee not to cooperate because she fears prosecution for her conduct; whether evidence is or is not from her is a secondary issue.

Goodling’s legal problems have less to do with her testimony, than with her conduct which she admits in the e-mails is linked with plans to remove US Attorneys. Indirect evidence indicates Goodling was part of an effort to usurp Senatorial power; and unlawfully directly appoint US Attorneys without securing the required changes to the Constitution.

* * *

Contrary to Goodling's assertions she has not been promised any immunity; and Congress has not offered her any immunity in exchange for any cooperation. The Garrity agreement does not apply to Goodling:

I have been granted use immunity. No answer given by me, nor evidence derived from the answer, may be used against me in any criminal proceeding, except for perjury or false swearing.

___ Garrity has not been granted any immunity

___ Congress has not promised any limited use of any information

___ Congress cannot prevent any truthful answer from being used against Goodling

___ Goodling fatally asserted that she might be prosecuted for perjury; but this is an exception to Garrity permitting evidence to be used against her in re perjury

Goodling fatally asserted that she might be prosecuted if she provides answers. This was voluntary on her part prior to securing any immunity agreement with anyone, including prosecutors and Members of Congress.

* * *

Contrary to Garrity, Goodling expands the fear to suggest she fear prosecution for perjury. However, Garrity does not permit this.

No answer given by me, nor evidence derived from the answer, may be used against me in any criminal proceeding, except for perjury or false swearing.

Because Goodlings's statements are not being made under threat of discharge for refusing to testify, Garrity does not apply. Even if it did, it does not address what Goodling asserted in her affidavit was her concern: That she might be prosecuted for perjury. Even if Garrity was being correctly invoked, Garrity does not provide this protection for Goodling.

Goodling's affidavit fatally asserts a concern which Garrity never protects, even if correctly invoked. Goodling is really asking for immunity for her threat to refuse to cooperate with Congress; or if she does refuse to cooperate to be immune to prosecution. That is impermissible and outside what an executive branch officer can compel another branch of government to agree.

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Congress is not an Agency

Garrity only applies to agency investigations. Whether Goodling has or has not invoked Garrity with the Department of Justice is irrelevant to a separate branch of government.

I am being questioned as part of an investigation by this agency into potential violations of department rules and regulations, or for my fitness for duty.

Garrity may only be invoked for agency investigations; and cannot be invoked, used as a shield, or the basis to refuse to cooperate with Congress. This is covered by a separate statute covering Congressional investigations.

The Congressional inquiry is not looking at violations of agency rules; but violations of the US Statutes which Congress has the power to review, gather evidence, and impeach.

___ Congress is not looking narrowly at violations of DOJ rules and regulations, but broadly at the Geneva question of what happened;

___ Goodling's fitness of unfitness for office is not the subject of the review; only a general issue of what did or didn't happen.

It is irrelevant and speculative that Goodling's actions in response to these issues may raise questions about her fitness for duty; or her suitability to remain an attorney under the Virginia Bar. However, if Goodling has violated any statute she may be disbarred. This evidence may or may not be developed with or without Goodling's cooperation and is unrelated to the Congressional inquiry into establishing basic facts.

* * *

Whether an employee can refuse to testify based on a speculative fear she might be prosecuted or terminated for her illegal activity. Congress has no power to threaten her firing; they can only impeach or forward evidence of her refusal to cooperate with inquiry to prosecutors.

Goodling has a duty to answer questions truthfully. It is secondary that those answers may incriminate her; if they might, then she then, when asked that question, may invoke her 5th Amendment privilege. Until there is a specific question whose answer might incriminate her, Goodling has no authority or right to invoke the 5th Amendment to decline to appear.

Garrity prohibits firing Goodling for her refusal to testify. This is a restraint on the employer; but does not confer a right to Goodling to refuse to testify to avoid prosecution for truthful answers.

* * *

Ref Garrity Warning only applies to threats of prosecutions by the Executive. Congress has no executive or prosecutorial power; nor can it threaten prosecution. Congress can only impeach, which is not the same as a prosecution.

Garrity does not apply to Congressional hearings, only to Executive-administrative hearings. Garrity does not prohibit Congress, with or without warning, from threatening to or impeaching Goodling for her refusal to cooperate with legislative inquiry.

Garrity v. New Jersey does not account for the opposite: That the 5th Amendment may not be invoked during an administrative hearing where there is no threat of firing. What DOJ OPR or DOJ IG may or may not do is meaningless with respect to what adverse inferences Members of Congress may or may not make independent of the Executive Branch.

Until she's been threatened with job loss, she cannot rely on Garrity to remain silent. Let's see the evidence that she's been threatened with a job loss or termination. At best, she's been guaranteed a job despite the actual threat to remain silent.

Garritty in inapposite and Goodling is distinguishable. Goodling needs something that will allow her to invoke the 5th during an Administrative hearing, even if there is no threat of prosecution or job loss. Goodling is assuming there is a potential for legal consequences; but this is not the basis for the Congressional inquiry, outside the threat of executive enforcement.

Remember, the unitary execute has the exclusive power to enforce the law. Goodling should know that the Congress has no power to prosecute; only the power to impeach. This is not a credible invocation of Garrity; and she cannot claim that the Congress has usurped Executive Power unless this President has been asleep with Goodling's assent. Either way, Goodling's argument is convoluted.