Tuesday, April 10, 2007

Watching the right at Left, Right and Center

I don't listen to all that many podcasts yet, but one of my favorites so far is public radio's Left, Right and Center, where people from the three viewpoints review the week's news. Unfortunately, Tony Blankley on the right, although usually reality-based, got away uncorrected with two wrong statements in the last episodes.

On the April 6th episode, Blankley said he needed to give some "factual corrections" to Bob Scheer's defense of Nancy Pelosi for her trip to Syria. One such correction was that Bush told Pelosi not to go. The problem is that Bush didn't tell her any such thing. He knew of her plans to go and raised no objection until after she was there.

On March 30th, Blankley said Bush loyalist Monica Goodling had the right to plead the Fifth Amendment and avoid testifying because hostile questioners will deny that her truthful answers are in fact truthful, and get her prosecuted for perjury. First, Blankley ignores the fact that Congress can't prosecute anybody - a federal branch prosecutor would have to be convinced to bring an indictment. More important though, is that Blankley is almost certainly wrong about this as a reason to take the Fifth. No court has ever accepted a "perjury trap" justification for refusing to testify:

A few courts have discussed the theoretical possibility that there is some kind of "perjury trap" defense that might apply when a witness is hauled before a tribunal just to see if the witness can be tricked into comitting perjury. Courts have hinted that setting such a perjury trap might violate the Due Process clause. However, I don't think any court has ever actually found a perjury trap; courts invariably find a government interest that allows the testimony, and generally do not need to reach whether such a defense exists. See, e.g., Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir. 1994).

The same (conservative) blogger notes later that even truthful statements related to past false testimony may not be enough to allow taking the Fifth - the test in that situation is fact-sensitive. Goodling's asserted reason is less strong, and not fact-sensitive - anyone asserting potential hostile questioning could make a similar claim or even stronger claim than her. Most hostile questioners would be actual prosecutors who, unlike Congress, can bring perjury indictments. The Fifth Amendment exception would swallow up the rule.

Too bad that Blankley wasn't challenged, but he also needs to get his facts straight. And considering that Blankley's relationship to normal right-wing radio is like Aristotle's Academy to this blog, he has to set a higher bar.

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