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Wednesday, July 25, 2007

Credibility of a witness is the domain of the jury

Posted by: Hammer / 8:34 AM

Josh Marshall points out an important exchange between Sen. Charles Schumer (D-NY) and Attorney General Alberto Gonzales. Schumer asks, repeatedly, whether the President sent Gonzales to John Ashcroft's sick bed in an attempt to get him to reverse the decision of the then-acting attorney general James Comey. Gonzales refuses to answer the question, except to say that he visited Ashcroft "on behalf" of the President:

In this exchange Sen. Schumer (D) asks Gonzales who sent him and Andy Card to John Ashcroft's bedside. And Gonzales just refuses to answer. He keep repeating that they went "on behalf" of the president. But he won't say if the president sent them. He just won't answer.

Schumer notes the key point: Gonzales isn't even asserting any kind of privilege. He doesn't say he can't remember. He just won't answer.

Marshall goes on to compare the testimony to a trial:

Testifying before Congress is like being called to testify in court. You have to answer every question. Every question. You can fudge and say you don't remember something and see how far you get. Or you can invoke various privileges. And it up to the courts to decide if the invocations are valid. But it's simply not permitted to refuse to answer the question. It is quite literally contempt of Congress.

I don't know if Marshall is correct here. By which I simply mean I am ignorant of the way this testimony works.

I have a guess, though, as to how this would actually play out in front of a jury. The witness refuses to answer a question and does not assert a right to not answer. The attorney would repeat the question. Next, you could ask the judge to direct the witness to answer the question.

But I think it stops there. I doubt that most judges would throw a witness into jail for contempt for responding to a question with a non-answer. If nothing else, it interferes with the flow and resolution of the trial. More likely, the judge would instruct the jury about the inferences they were permitted to draw from the witness's refusal to answer the question.

This highlights the way in which the Senate's hands are tied. The Senate could stop its proceedings and seek to hold Gonzales in contempt. This will result in a showdown over executive privilege which would last weeks, months, or years. Notably, the Senate's investigations into potential misconduct would be stymied. Worse, this exchange is of no consequence in the court of public opinion. Viewers might turn against Gonzales in droves, but the opinion of the American people matters not in this case. It's a jury of 1. He sits in the Oval Office. I suspect he's pleased.

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