Lerner’s “I did nothing wrong” Comment Likely Waived Her Fifth Amendment Rights

lernerLois Lerner, the head of the IRS tax-exempt division during the now infamous period of targeting conservatives, asserted her Fifth Amendment right against self-incrimination. Then she pulled a political stunt before the cameras–but doing so might have cost her the immunity that she might desperately need to stay out of federal prison.

The Constitution’s Fifth Amendment includes the Self-Incrimination Clause, providing that no one can be compelled to give testimony that could be used to convict them of committing a crime. Prosecutors have to convict their targeted suspects; you can’t make the defendant convict himself.

This Fifth Amendment right–so common that we call it “pleading the Fifth”—applies whenever you’re called to testify. It applies to civil proceedings, criminal proceedings, before board or commissions–or here, before Congress. You can assert it whenever you reasonably fear that if you answer the question, your words could be used as evidence of a crime.

Of course, this also means when someone asserts her Fifth Amendment right that she likely committed a crime. You’re presumed innocent in court; you’re not entitled to a presumption of innocence in the court of public opinion.

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But a person can waive her Fifth Amendment right and choose to testify. As the Supreme Court first explained in Rogers v. U.S. in 1951, a defendant can open the door by choosing to speak about the facts for which she might later be charged. You cannot say what you want about the situation then refuse to answer any more questions.

Because it’s hard to know when that line has been crossed, if you’re put on the stand for…

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