Another Congress, Another Monica

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
I'm not going to lie to you. I have absolutely no idea what former Justice Department official Monica Goodling is going to say this morning when she testifies about the U.S. attorney scandal before the House Judiciary Committee.

Some folks believe that she will cry. Others believe that she will accuse Attorney General Alberto Gonzales of knowing more about the prosecutor purge than he has let on so far. Others believe that she will take one for the White House like the "loyal Bushie" she is and protect her superiors. Bottom line? Your guess is as good as mine.

But what I can guarantee you is that she will not face perjury charges when her testimony is complete nor, in all likelihood, will any of the other unhappy folks who have come before her to Capitol Hill to tell their stories about the chaos within the Justice Department. Goodling is in good shape because she has been given "use immunity" for her testimony and thus, presumably, will testify accurately and honestly about her role in the affair.

And that's the key — she has to be honest. If the feds find out she wasn't, they can go after her just like before. So when she is asked, for example, who drew up the list of prosecutors to be fired she should be able to offer an answer that so far has eluded all of us.

Likewise, when she is asked to tell us what role Gonzales played in the run-up to the firings Goodling should be able to give us details that for whatever reason the attorney general is unable or unwilling to give us. For these reasons alone, her testimony will be both interesting and important and certainly capable of advancing the story far beyond where it has stood for the past week or so.

But what about perjury charges against Goodling's former comrades? The fact that the Justice Department prosecutes "perjury before Congress" cases is the reason why I believe that no one else in this matter — not the attorney general, not his former Deputy Chief of Staff Kyle Sampson, nor former Deputy Attorney General Paul J. McNulty, will ever be prosecuted for their responses during the past few months.

This is true whether Congress votes to refer a perjury case to the Justice Department or whether federal prosecutors themselves initiate such an investigation and prosecution.

U.S attorneys are notoriously shy about bringing "perjury before Congress" cases — and if you don't believe me, just ask Rafael Palmeiro and then compare his legal troubles two years ago with the legal headaches the trio above have today.

It is very hard to win a perjury before Congress case — although John Poindexter was convicted as a result of the Iran-Contra scandal — and federal prosecutors have an ethical responsibility to bring only those cases they believe they can win.

Take the attorney general, for example. It may be infuriating to the nation that he has told both houses of Congress on scores of occasions these past few months that he "doesn't remember" or "doesn't know" key parts of the story here. But it is virtually impossible to convict someone based upon those statements — and you don't need to be a legal scholar to understand why.

Another reason to bet against ever seeing Sampson, McNulty and/or Gonzales as defendants in a case based upon false statements to Congress is that such prosecutions likely would require the appointment of a special prosecutor.

After all, it would be hard to swallow a criminal case involving misstatements by Justice Department officials about U.S. attorneys handled by … U.S. attorneys working under the chain of command at the Justice Department!

But if the Congress can pressure President Bush into appointing a special prosecutor (remember, the Independent Counsel statute expired following the Monica Lewinsky investigation) then surely the Congress could pressure President Bush into canning his attorney general in order to avoid appointing a special prosecutor.

You follow? Good. Because I never promised you that this would be easy.