05/24/2013 04:57 pm ET Updated Jul 24, 2013

Rudy Giuliani Should Know Better

After describing Rudy Giuliani as the "former Mayor of New York City, fifteen years in the Justice Department, U.S. attorney, associate attorney general and assistant U.S. attorney", this breathtaking misstatement of constitutional law took place on Sean Hannity's May 21 program:

HANNITY: Yes. What do you make of Lois Lerner going to plead the fifth tomorrow?
GIULIANI: Well, I think now we can say, this is a criminal matter. She is taking the Fifth Amendment. She is saying the answer might incriminate her. That has to be a valid invocation of a privilege. So the reality is, that can't be used against her in court of law, but we certainly have a right to draw the inference that there is some criminality involved here. Otherwise, she wouldn't be taking the Fifth Amendment.

Rudy you should know better! It is indeed possible that what occurred in the IRS regarding its selection process may be criminal, but having Ms. Lerner invoke her fifth amendment right is certainly not evidence of it. For a person of Mr. Giuliani's background to make such an assertion (even given his political motivation) is shocking.

The Fifth Amendment provides that "no person shall be compelled in any criminal case to be a witness against himself." The privilege is available to those who claim innocence. The Supreme Court long ago held in Grunewald v. United States that one of the main functions of the Amendment is to protect the innocent. To suggest that asserting the privilege constitutes an admission of criminality is to totally ignore the history of the privilege and the rulings of the Supreme Court.

Shame on you Rudy!