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Take the Fifth…Please!

The opinions expressed by columnists are their own and do not necessarily represent the views of

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.

Take it.

“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.

So Lois Lerner’s decision to take the Fifth was tactically correct. There’s no question about it, especially since there is no realistic possibility that she is anything other than guilty, guilty, guilty of being an eager participant in a systematic campaign to intimidate and harass the administration’s ideological opponents and then covering it up.

But some chin-strokers think that we need to pause for a moment and not draw any conclusions from her decision to clam up. They think we should engage in the kind of fiction that leads to news outlets captioning pictures of the Woolrich killers, blood dripping from their hands, as “The alleged perpetrators.”

Nonsense. We need to paste the scarlet number five to her forehead and turn her into the poster child for the rampant corruption and petty tyranny that had characterized this administration since Day One.

Conservatives, this is when our political system’s infestation by low information voters starts to pay off! It’s fair to assume that someone reading Townhall or other sophisticated conservative information outlets is going to have some understanding of the role of the Fifth Amendment and its hallowed place in our legal system. But our low information friends don’t have that kind of knowledge base to fall back on – they’re mostly getting psyched-up about seeing Fast & Furious 6.


When you take the Fifth, you look like you are hiding something whether you are or not. Most people have the quaint notion that if you have nothing to hide you should be willing to spill your guts. We need to exploit that common misunderstanding, and to do so shamelessly. This isn’t about educating low information voters on the subtleties of the right against self-incrimination. Hell, they had four years of this Administration and still reelected it. What the hell could we hope to teach them with words when experience couldn’t?

We need a constant drumbeat of questions about why key administration officials are hiding behind the Bill of Rights. Yes, I know senior civil servants are not really part of the administration per se, but if it walks like a duck, and quacks like a duck, and demands reams of confidential information from conservative groups then leaks the info to leftwing organizations, it’s a duck. And by “duck,” I mean a willing liberal tool of political oppression.

One thing Congress should not do is call Lois Lerner beck for a second round, nor should it get into a micturition competition with her lawyer over whether she waived her Fifth Amendment right by making her statement. By the way, Congressmen, bad move letting her talk. A Congressional hearing is not a venue for discovering information (you take depositions to do that, long, mind-numbing depositions). Its political theater, with designated heroes (hopefully, conservatives lawmakers) and designated villains (hopefully, administration flunkies). You don’t give her a chance to mess up our narrative with self-serving spiels. Self-serving spiels are your bailiwick.


And you need to be careful about appearances. There is no judge in a Congressional hearing to pull back the reins when the questioning gets too aggressive, as it can. We could look like bullies instead of the disinterested, neutral fact-finders we want to portray ourselves to to Team Lo-Info. Lerner’s been branded, and it’s time to find the next civil service weasel and get him or her to stop talking.

And when he or she takes the Fifth, we need to turn to the American people, and shamelessly ask, “So, what are they hiding now?”

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