06/05/2013 11:26 am ET Updated Aug 05, 2013

Why Doesn't the Public Get the Fifth Amendment?

There's been a whole brouhaha over Lois Lerner, departed head of the IRS Tax Exempt Division, having taken the fifth amendment before a House Oversight Committee hearing. What's more, she had the temerity to publicly proclaim her innocence while at the same time politely declining to answer any questions.

Now maybe, just maybe, despite the three-ring circus that caused her to publicly invoke "the fifth," she should have simply bitten the bullet and asserted it, rather than simultaneously try spin it under the klieg lights in the House Committee chamber. Maybe, instead, after "taking five," she should simply have walked out onto the steps of the Capitol with the American flag flying in the breeze, and made that same "I did nothing wrong" statement. The identical innocence statement in that venue would also likewise have been carried on YouTube worldwide, without risk -- assuming there really is one -- that the Committee Chairman, Darrell Issa, an anti-Administration Republican, might actually petition a federal court to hold Lerner in contempt. That possible contempt would be legally predicated on her refusal to answer questions given the claim by some Committee members that she waived her fifth amendment protection by saying anything at all -- like: "I'm innocent." After all, that's basically all that she did!

But here's the real question: Why did she have to be publicly drawn and quartered in the first place even though, to his credit, Chairman Issa didn't challenge her assertion of the fifth amendment and was ostensibly understanding of it under the circumstances? Surely her able counsel told the Committee counsel and minority counsel beforehand that she would invoke her constitutional right not to incriminate herself. Yes, House rules do deny a witness the ability to circumvent the public spectacle by doing it privately or relying simply on her written attorney's assurance. But why?

Why was it necessary, even assuming criminal conduct by Lerner (which we certainly don't yet know occurred), to make someone appear to be guilty in the public eye, especially given the Attorney General's bold pronouncement of a criminal investigation of the IRS's Tax-Exempt Division -- up until now headed by Lerner -- for ostensibly having focused exclusively on the tax-exempt status of Tea Party-like conservative entities? Not to mention House Speaker John Boehner's publicized screed, without really knowing the facts: "My question is, who's going to jail over this scandal?"

The truth is -- and the public doesn't generally realize it -- innocent people, all the time, do and should assert the fifth amendment. The reason is simple: Innocent people actually get convicted far too often. The public somehow thinks that the fifth amendment was designed to protect the guilty, when it was actually designed to protect the innocent.

And the Supreme Court -- not the famously liberal Warren Court, but earlier in an opinion authored by Justice Tom Clark -- articulated that the fifth amendment is the perfect right of a witness if answering a question would merely "furnish a link in the chain of evidence necessary" to prosecute her.

What does that mean? It means that if Ms. Lerner were, for example, to answer where she physically was on Jan. 2, 2011 (a random date chosen by the author, and of no particular concern), or whom she spoke to on that date, or even what her email address was at the time, these seemingly simple, innocuous , non-incriminating, answers might supply that very link needed to prosecute her. And it wouldn't legally matter if the prosecutor could have obtained the answers to those questions from a totally independent source.

Now, for sure, it doesn't look good to the public -- even though Holder's prosecutors and the House Committee members surely know better -- when someone takes the fifth amendment. It always conjures up to the public the view that the witness has something to hide, even if he or she doesn't. And that's what's happening here.

The public does indeed have a right to know what was going on at the IRS, and if Ms. Lerner had any role in the "scandal," what it was and what her reasons were. It looks flat out bad to the public when a witness invokes his fifth amendment right. But certain House Committee members (this happens on both sides of the aisle, particularly when the Committee members in the majority are from a different party than the incumbent administration) probably have a different agenda than Ms. Lerner. When Ms. Lerner is forced to publicly take the fifth amendment, it may advance those legislators' political agenda. All fine -- that's business as usual in Washington, whichever party is in power. This time, the incumbent is President Obama and his party, and we're not saying only the Republicans wanted Lerner to publicly face the music.

But it doesn't advance the "legal" ball one iota if Ms. Lerner is compelled to be publicly humiliated. If she has done wrong -- criminal wrong -- she should be prosecuted. And, perhaps, being forced to step down from her position is indeed the appropriate consequence of choosing not to answer questions before the Congress (although she probably would have been suspended either way). Clearly, an agency or department head can't effectively govern if she won't answer appropriate and relevant questions before a congressional committee.

Still, the Supreme Court consoled us long ago by saying that taking the fifth is a citizen's inviolable right. It didn't condition that right on a witness being publicly flogged in the process -- particularly before the facts are in. The Committee should indeed find out the facts. If it can't get them from Lerner, it should get them some other way. But not by using the fifth amendment punitively.