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MADELEINE BRAND, host:

From the studios of NPR West, this is DAY TO DAY. I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick.

Coming up, a surprise guilty plea from a detainee at Guantanamo.

BRAND: But first, more on the U.S. attorney scandal. One of Attorney General Alberto Gonzales' top aides, Monica Goodling, says she will plead the Fifth Amendment when asked to testify before Congress.

Joining us now is Dahlia Lithwick, legal analyst for DAY TO DAY and for the online magazine Slate. Hi, Dahlia.

DAHLIA LITHWICK: Hi, Madeleine.

BRAND: Dahlia, over on Slate, you have something called a Gonzometer, which predicts when the attorney general will resign and leave office. Today, it's set for 80 percent likelihood he'll be gone by Friday. So are things really that bad for him?

LITHWICK: Well, they're pretty bad, Madeleine. You know, he's got senior Republicans on the judiciary committee on the Sunday shows saying they have no confidence in him. He gave a very, very wobbly interview yesterday to Pete Williams at NBC, trying to explain how statements he made on March 13th can be reconciled with totally different e-mails that were released last Friday.

And then, as you said, he's got this sort of senior aide who is taking a leave of absence from her job and asserting the Fifth to refuse to testify. So it's looking very bad for the AG right now.

BRAND: Okay. Well, let's talk about Monica Goodling's decision to invoke the Fifth Amendment. Now her lawyer said that she did that because appearing before the judiciary committee would be quote, "legally perilous for her." And I guess I don't understand why it would be legally perilous if this is not a criminal proceeding.

LITHWICK: Right. You and everybody else, Madeleine. It's a very strange assertion of the Fifth. You know, if she's going to testify truthfully before a committee - as you said, there's no criminal charges here - it's not at all clear where the Fifth Amendment comes in. She seems to be claiming that even though she would tell the truth, other witnesses may be untruthful, and then she's going to get into trouble. They keep citing to Scooter Libby as an example of what happens when, you know, you come forward and testify.

The other thing is that her attorney is claiming that some unnamed Justice Department official is suggesting that she is to blame, and so there could be, down the road, some kind of obstruction charges. But, as I said, it's a pretty big stretch of the Fifth Amendment as we see that privilege to say that just because I don't think I'm going to get a fair shake from the committee, I'm going to assert my Fifth. If we all said that, nobody would ever be witnesses for anything.

BRAND: Well, is that the end of it? Then she just doesn't testify?

LITHWICK: Well, you know, yeah, she doesn't testify. I mean, certainly, there's, you know, mutterings out there about, you know, there being consequences for her. Interestingly, Kyle Sampson - who was Gonzales' chief of staff who resigned over this matter - is still going to go forward in spite of that and testify on Thursday. He says he sort of trusts in the committee to do the right thing. So it is - and it's sort of interesting as we're, sort of, seeing the wheels come off and fingers being pointed, everybody's strategy is starting to diverge.

BRAND: Well, also interestingly, Neal Katyal - the lawyer who successfully argued before the Supreme Court that the Bush administration's secret military commissions at Guantanamo violated the Geneva conventions - he wrote an op-ed in today's New York Times saying that this should just be taken out of the hands of Congress and put in the special prosecutor's hands. And what do you think about that?

LITHWICK: Well, the call for a special prosecutor has been sort of getting louder and louder over the past week. And certainly now, there's evidence that there's been infighting among various different institutions that were supposed to be charged with overseeing this - that the Justice Department had initially opposed one effort to have some oversight. So I think part of what we're seeing happening now with this call for a special prosecutor is a real doubt about whether, as Katyal suggests, the judge should be judging himself, or, in this case, whether the AG is in any position to oversee an investigation into his own conduct.

BRAND: Dahlia, thank you.

LITHWICK: My pleasure, Madeleine.

BRAND: Dahlia Lithwick is Slate.com's legal analyst - also a legal analyst for us here at DAY TO DAY.

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