Lois Lerner was absolutely right to take the Fifth when she came before Congress. It was her right as an American. Her lawyer was right to tell her to do it. We should be proud that our Constitution recognizes the right to not incriminate oneself. And we should use her invocation of this fundamental right to figuratively club her and the whole administration like a Canadian on a baby seal.
The Constitution is unequivocal – you can’t be forced to testify against yourself. Sure, you can waive that right by choosing to, but it’s not easy to do. The courts properly don’t let you waive the Fifth Amendment unless you really, really try – it’s a fundamental right, not a game of gotcha. That’s why I remain unconvinced that allowing her to give a generic opening statement constituted a waiver- I just don’t see it, but I’m not a federal judge. And I never will be.
I am a lawyer, though, and I when I advise people I have a pretty clear policy regarding the Fifth Amendment.
“But if I just explain…”
You aren’t going to talk professional investigators and prosecutors who are looking at you out of looking at you. Take the Fifth.
“But they’ll think I’m guilty…”
They already think you’re guilty. If they didn’t, they would be talking to someone else. Take the Fifth.
You probably are guilty. Take the damn Fifth.
The Fifth is equally important if you are innocent. You see, our jury system is not focused on determining whether someone did the crime or not. If it does, that’s a lucky byproduct of the process. Our criminal justice system is actually focused upon making a determination that someone is “Guilty” or “Not Guilty.”
Being found “Guilty” does not mean you actually did the crime. Instead, it means that a prosecutor with endless resources and the full weight of the government convinced 12 people who couldn’t figure out how to avoid jury duty that you probably did something wrong. Notice how there’s nothing there about having actually done it – innocent people get convicted all the time.
That’s why you take the Fifth. You say nada, because if you do say something and the prosecutor can convince the dozen folks who got picked at random to hear the case that something you thought was true really wasn’t – even if it was – then you have a false statements or perjury conviction as well.