Evidence Mounting Towards Criminal Act in US Attorney Firings

You can argue that because the President has the authority to fire U.S. Attorneys without cause, the current scandal revolving around those firings is nothing but a partisan political game. But what do you do when the senior counselor to the Attorney General refuses to testify before Congress about the firings on the grounds that doing so may implicate her in a crime?

That is the question we now find ourselves asking, with the Washington Post reporting today that Monica Goodling has indicated through her own lawyers that she intends to respond to any questions asked of her by the Senate Judiciary Committee with these famous and confidence evaporating words:

"I refuse to answer that question on the grounds that it may incriminate me."

Actually, it will be far less ominous than that, but those are the words that a person should be forced to say, because that is precisely what they are doing. As Aravosis has pointed out, the 5th only allows you to remain silent if you believe your testimony will implicate you in a crime. In other words, you must believe a crime has been committed and that your knowledge of it could make you a partner to it.

I can't at this point think of any better evidence the Judiciary Committee might have that would indicate a deep investigation of this scandal is not only prudent, but mandated. We'll have a better handle on this when Gonzales' deputy goes before the Committee Thursday morning, but an entirely new avenue has suddenly opened in this investigation.

Executive privilege only covers communications between the President and his staff, so a conversation, e-mail, or other communication between two staffers -- no matter how high on the political food-chain they may be -- are not subject to the protection of executive privilege.

This would allow the Judiciary to subpoena Karl Rove and A.G. Gonzales for testimony no matter what the president does, but just as importantly, it reveals that the Judiciary may have more to gain from subpoenaing lower level staffers who do not have regular contact directly with the President, but still may have significant knowledge of what went on.

Additionally, the revelation that Justice Department officials believe a crime may have been committed gives the Judiciary Committee broader claims in seeking testimony from Rove and company under the guise of an actual criminal investigation, a clause that many in the GOP have been testing out over the past few days in trying to soften the blow back from U.S. v. Nixon.

In that case, the Supreme Court imparted significant limitations to the claim of executive privilege that essentially limited it to the protection of "military, diplomatic, or sensitive national security secrets."

Conservative claims that such limitations only exist in criminal investigations are now significantly diminished, and Goodling's eventual evoking of the fifth amendment will only serve to embolden administration critics.

An angle that Rove and the administration may not be considering is that while refusing to cooperate with legally binding subpoenas may buy them enough time to reach the expiration of President Bush's second term, it will also drag behind the entire Republican party throughout the 2008 Presidential election, which encompasses another round of Congressional elections as well.

The number of Republicans that are up for reelection in 2008 outnumber Democrats by nearly 2-to-1, and public sentiment is strongly against the U.S. Attorney firings and the subsequent appearance of impropriety on the part of the administration, regardless of whether it is deserved.

The President may be able to dodge the bullet personally, along with A.G. possibly, but he may end up burning his own party in the process by damaging the GOP's credibility on being tough on crime and accountability for years to come.

Sources: Dan Eggen, "Gonzales's Senior Counselor Refuses to Testify" Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2007/03/26/AR2007032600935.html); John Aravosis, "Gonzales' chief counsel refuses to testify before Congress, invokes Fifth Amendment right against self-incrimination" (http://americablog.blogspot.com/2007/03/breaking-gonzales-chief-counsel-refuses.html)