Former Clinton State Dept. Staffer To Take The Fifth Before Congress

Former State Department Staffer To Take The Fifth. A former State Department staffer who “had worked on Clinton's 2008 presidential campaign before setting up the server in her New York home in 2009” will assert his constitutional right to not answer questions before Congress. From The Washington Post:  

A former State Department staffer who worked on Hillary Rodham Clinton's private e-mail server tried this week to fend off a subpoena to testify before Congress, saying he would assert his constitutional right not to answer questions to avoid incriminating himself.

The move by Bryan Pagliano, who had worked on Clinton's 2008 presidential campaign before setting up the server in her New York home in 2009, came in a Monday letter from his lawyer to the House panel investigating the 2012 attack on the U.S. consulate in Benghazi, Libya.

The letter cited the ongoing FBI inquiry into the security of Clinton's e-mail system, and it quoted a Supreme Court ruling in which justices described the Fifth Amendment as protecting “innocent men . . . 'who otherwise might be ensnared by ambiguous circumstances.' ” [Washington Post, 9/2/15]

Taking The Fifth Is “A Congressional Tradition”

USA Today: Taking The Fifth Is “A Congressional Tradition.” USA Today noted in May 2013 that numerous witnesses from both inside and outside of government have invoked their Fifth Amendment rights against self-incrimination. This included then-Justice Department official Monica Goodling, who in 2007 “refused to answer questions about the firing of federal prosecutors.” Her lawyer stated the “potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real.” [USA Today, 5/22/13]

The Guardian On Taking The Fifth: “The Politics Cuts Both Ways.” The Guardian wrote in 2013:

To those on the political right outraged today at [Lois] Lerner's refusal to testify, there may be some consolation in the knowledge that the politics cuts both ways. In 2007 Monica Goodling, an underling in President George W Bush's justice department, took the fifth to avoid telling Congress about the Bush administration's sudden dismissal a year earlier of six US attorneys. A justice department investigation later concluded that the firings were inappropriately political; one of the dismissed attorneys seemed to have been fired for not aggressively prosecuting supposed voter fraud by Democrats. Goodling was implicated because she was one of the few to have been clumsy enough to explicitly describe the administration's plan in writing. She took the fifth, was never charged with a crime, and today she works in PR. [The Guardian, 5/22/13]

Conservative Media Figures Have Previously Defended Taking The Fifth 

Bill O'Reilly: “I Would” Take The Fifth And “Anybody In Their Right Mind” Would Take It. While discussing Goodling, Fox News host Bill O'Reilly repeatedly said he would advise taking the Fifth before Congress. From a March 2007 program:

O'REILLY: OK. Monica Goodling is the liaison between Attorney General Gonzales and the White House. She is called upon to testify in front of the Senate. All right? She's taken a Fifth Amendment, saying I'm not going to say anything. I'm going to go up there and give my Fifth Amendment rights. Now if you were in the same position, you would do it and I would do it, too. You want to know why? Two words. You know what the two words are. You want to say them or you want me?

JONATHAN TURLEY (George Washington University Law Professor): Go ahead.

O'REILLY: No, you want to say them? You know what they are. Two words.

TURLEY: What are they?

O'REILLY: It's a name. Go ahead. You know what the name is.

TURLEY: I couldn't imagine.

O'REILLY: Scooter Libby.

TURLEY: Well, you see, that's a bad thing to choose, because he's a convicted felon.

O'REILLY: Yes, but he got convicted.

TURLEY: A jury found he had lied.

O'REILLY: .because he went in and he talked about a situation that wasn't even defined as a crime and apparently he lied about it. So why would Monica Goodling or Jonathan Turley or Bill O'Reilly or anybody in their right mind go off and testify about anything?

TURLEY: You know, that's like saying I'm not going to file with the IRS because Capone got nailed.

O'REILLY: No, you don't have to testify.

TURLEY: (INAUDIBLE) file with -- well there's point - the point, Bill, is that you don't have to fear from testifying truthfully. What she said.

O'REILLY: Bull.

TURLEY: .is that I don't think I can testify without potentially incriminating myself for a crime.

O'REILLY: Because she doesn't want to say anything that could put her in Scooter Libby's position.

TURLEY: You know, Bill, she may be the first sitting Justice Department official ever to invoke the Fifth. I don't remember any, but she may.

O'REILLY: You would have done exact -- if you were representing her, you would have told her to do the same thing.

TURLEY: No, I would not.

O'REILLY: Yes, you would.

TURLEY: No, I would not.

O'REILLY: She'd be crazy to go up there. She doesn't know what they're going to ask. She - you know, Libby may go to jail. He didn't know what he was talking about when he was dragged in there.

TURLEY: The only way that I would advise a client like that to take the Fifth is if she could plausibly be accused of crimes. And if that's the case, then it is nothing to do with messing up in testimony.

O'REILLY: Oh, I don't believe that for a second. I don't believe that there's - that anybody -- knock the music off. I got another question for him. I don't believe that for a second. And when you think about it, if you were representing her you'd say, look, take the Fifth. Don't put yourself in a.

TURLEY: Kyle Sampson is going to testify. And they're going to put a virtual toe tag on that guy before he sits in the chair. He's not going to take the Fifth.

O'REILLY: Maybe so. There's nobody -- I wouldn't. I wouldn't ever. Because I don't know where they're coming from or what they're going to throw up. [Fox News, The O'Reilly Factor, 3/27/07, via Nexis]

Limbaugh: “Wise To Have” Monica Goodling “Plead The Fifth” Because Congressional Testimony Is “A Perjury Trap.” From a March 2007 program: 

LIMBAUGH: It's a perjury trap. A lot of this stuff is just being set up for perjury traps. That's why they want Rove and Harriet Miers under oath on this whole issue. So, the lawyer says that the obvious lack of impartiality of the Senate and conclusions already reached make anybody, especially Monica Goodling's testimony, perilous here. He's wise to have her plead the Fifth. Now, what do you think about this, though, Matt? The Fifth Amendment is what it is. It's certainly a constitutional right. But most people think, “A-ha! A-ha! Fifth Amendment! A-ha, a-ha! Guilty! You're afraid to go up and show it. You're afraid to admit it.” You know that's how people react to people who take the fifth. [Premiere Radio Networks, The Rush Limbaugh Show, 3/27/07, via Media Matters]

Perino Defended Goodling Decision As Her “Constitutional Right.” While serving as a spokesperson for the Bush White House, current Fox News host Dana Perino defended Goodling's decision to take the Fifth:

“It is unfortunate that a public servant no longer feels comfortable that they will be treated fairly in testimony in front of Congress,” White House spokeswoman Dana Perino said.

“The attorney general, with the president's support, has urged members of the Justice Department to cooperate with Congress' request for testimony,” Perino said. “However, we must respect the constitutional rights of the people involved and the decision of those individuals and their counsel to protect those rights.” [CNN.com, 3/27/07]