I have argued for several days that the White House has waived executive privilege, with respect to the eight fired US Attorneys, both by offering up Rove and Miers for “conversations” and by selectively disclosing purportedly privileged emails.
It appears that Monica Goodling’s attorney is putting forward the new line of defense – a reinforcement to executive privilege – designed to thwart Congress’s inquiry. Goodling’s “fallback” position is what I call the “innocent Fifth Amendment” claim. Others can discuss whether this will fly politically, given the public implications of invoking the Fifth Amendment. (Echoes of Oliver North and Watergate.) My focus here is the legal validity of simultaneously proclaiming one’s innocence and taking the Fifth.
In general, a witness who is subpoenaed to testify before a court or Congress may invoke the Fifth Amendment and refuse to testify if he or she has a good faith basis for doing so. A good faith basis exists where the witness’ answers “could reasonably ‘furnish a link in the chain of evidence’” against him or her. If the assertion of the Fifth Amendment privilege is challenged, a court must make the determination of whether the witness, in testifying, faces genuine risks of incrimination. U.S. v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (“The standard for determining whether a claim of privilege is justified is ‘whether the claimant is confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.’ ”).
The lynchpin of the “innocent Fifth Amendment” claim is the Supreme Court’s decision in Ohio v. Reiner, 532 U.S. 17 (2001) (per curium), which everyone should read and understand. This case involves a factual scenario very different from the one that Monica Goodling faces, but the principle in Reiner is simple enough.
In Reiner, a baby had died from "shaken baby syndrome." It was clear that one of two people had killed the baby – the father or the babysitter – as each had been alone with the baby during the period of time when the trauma could have occurred. The state prosecuted the father.
The father's defense at trial was, predictably, that the babysitter did it. When the state indicated that it would subpoena the babysitter to testify against the father, the babysitter (who claimed her innocence) refused to testify on the basis of the Fifth Amendment. The state subsequently granted the babysitter immunity, the babysitter testified to her innocence, and the father was convicted.
On appeal, the father argued that the babysitter was not entitled to invoke the Fifth Amendment because she had maintained her innocence. The Court rejected this argument and upheld the father's conviction, holding that the babysitter (named Batt):
had “reasonable cause” to apprehend danger from her answers if questioned at respondent's trial. Batt spent extended periods of time alone with Alex and his brother in the weeks immediately preceding discovery of their injuries. She was with Alex within the potential timeframe of the fatal trauma. The defense's theory of the case was that Batt, not respondent, was responsible for Alex's death and his brother's uncharged injuries. In this setting, it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her. Batt therefore had a valid Fifth Amendment privilege against self-incrimination.
Significantly, the Court emphasized:
[W]e have never held . . . that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's “basic functions ... is to protect innocent men ... ‘who otherwise might be ensnared by ambiguous circumstances.’” In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth.
What does the Reiner case have to do with Goodling’s situation? It establishes the general proposition that a Fifth Amendment claim is not necessarily incompatible with a person's maintenance of innocence. Beyond that, however, the comparisons become more strained. On the face of it, Goodling's situation is dramatically different from a manslaughter case where only two people could have committed a single distinct crime.
In the Reiner case, it was very clear why the babysitter would reasonably believe that her truthful testimony would place her in jeopardy. Supposing the jury had acquitted the father, the state might have turned around and prosecuted the babysitter. The babysitter’s truthful testimony would have assisted the state in establishing numerous facts critical to proving the babysitter’s guilt – most importantly, that the babysitter was alone with the baby during the critical time period, and therefore had opportunity to commit the crime. Thus, the Court concluded that her assertion of the Fifth Amendment was valid under the circumstances, notwithstanding her claim of innocence.
The Reiner decision has been applied and discussed in some depth in at least two subsequent cases. See In re Proceedings Before a Grand Jury, 768 N.E.2d 1102 (Mass.App.Ct. 2002) (“As in Reiner, the witness in the case before us was one of but two individuals who, because of timing and opportunity, were in a position to have perpetrated the crimes, and she has been implicated by the only other person so situated.”); Hernandez v. State 2007 WL 671317 (Tex. App. San Antonio 2007) (“Here, Jose Gutierrez's testimony for the State placed Alex Medina at the scene during the assault, and Hernandez's written statement, although not admitted into evidence, implicated Medina in the assault, revealing a potential for self-incrimination if Medina testified.”).
What Reiner and the cases that have followed it have in common is the following: (1) there was absolutely no question that clearly identified crime occurred; (2) the witness was present when and where the crime occurred or could have occurred, and had the opportunity to commit the crime; (3) the witness was among a very small number of people so situated; and (4) another person in that suspect group had accused the witness of committing the crime.
Based upon these cases, it seems clear that the Reiner case applies in a very narrow set of circumstances. Whether those circumstances are present in the Goodling case remains to be seen. However, if it is true that Goodling is in a situation where Reiner would clearly control, that means that a crime has been committed at a high level of the Justice Department, and that Goodling or someone within a very small circle surrounding her is complicit and either blames her or is expected to blame her.
On the other hand, it seems at least as likely that Goodling is simply trying to stretch the narrow Reiner rule far beyond what the legal precedent seems to support.
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