We’ve been covering the Lois Lerner saga for you wall to wall this month, up to and including the paid vacation she received in exchange for collectively flipping us all the bird, so there’s no need for much of a recap to bring you up to date. But the fact that she chose to invoke her fifth amendment rights – and even more so, the way in which she did it – have provided a lot of food for thought. From the moment Lerner essentially performed her own version of the Otter Defense from Animal House and walked out on a congressional committee, I began seeing two distinct schools of thought emerging. For my money, it seemed to amount to a tacit admission of guilt, or at least intentionally keeping the public and the government from information critical to the investigation of this scandal. But others were quick to leap to her defense, or that of anyone who does this. Among the latter group was Doug Mataconis, who I’ve been debating on this subject for several days.

As things stand right now, I have no idea what Ms. Lerner’s culpability in this matter might be, or indeed whether there were any crimes actually committed at all. That’s what an investigation is for. At the same time, it is Congress’s job to find out what happened, and why, both as part of its role as the oversight body of Executive agencies like the IRS and to determine whether changes to the law to prevent this from happening again might be necessary. That process will go forward. At the same time, though, people like Ms. Lerner are entitled to the same Constitutional protections that everyone else is, and it’s improper to assume wrongdoing just because they choose to exercise those rights.

It’s always risky business for us non-attorney, unwashed masses types to tangle with the experts when it comes to the constitution, but common sense would seem to indicate that something isn’t working as intended here. Let’s go back for a moment to what the fifth amendment actually says.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The key phrase we’re looking for here, of course, is,. “nor shall be compelled in any criminal case to be a witness against himself.” Doug cites all manner of case history where courts have had to rule on situations where people have taken the fifth and interpret it accordingly, but has this provision of the Constitution turned into some sort of panacea for the guilty? Let’s look at the elements of Lerner’s situation and the specifics of the amendment.

Was she “compelled in a criminal case?” Well, she was compelled, as a subpoena was issued for her to appear and testify. But this isn’t a criminal case… at least not yet. It’s a congressional hearing. Lerner hasn’t even been charged with anything.

And in order to invoke the privilege, she would have to be avoiding a situation where she would be acting as “a witness against herself.” But by her own testimony – and yes, I think her opening statement was “testimony” since it was read into the record as part of this investigation and hearing – she has done nothing wrong, broken no laws and is as pure as the driven snow. If that’s the case, then she can not be found guilty of any charges, so no testimony she could offer would place her in jeopardy.

Is anyone else seeing the inherent contradiction here? And yet we are to be chastised if we draw a conclusion from her actions that she’s lying through her teeth and either is guilty of something or is intentionally withholding information which might help us clear things up and get to the bottom of the situation. Which leads me to the final, and larger question I began with.

The fifth amendment – and the Bill of Rights in general – serve an important function and the Founders were wise to provide these protections. They wanted to make sure that the individual who was innocent could not be railroaded by the massive power of the government. They also serve to reaffirm the fact that the government needs to make its case beyond a reasonable doubt before a jury of your peers if you are accused of something. You need not say a word in court, and may choose to remain mute and force them to prove that you are guilty. But what if you are guilty? Or what if you are not personally guilty but have knowledge which would help lead to the truth and resolution of a possible crime? Are you under no obligation to help?

In short, have we arrived at the point where the Bill of Rights is less about protecting the innocent than it is about making sure the guilty have the best chance of going free, providing they can afford a slick enough attorney? This entire situation with Ms. Lerner makes no sense to me at this point, and it really seems like the fifth amendment is being turned on its head. In the meantime, if Lois Lerner wants to turn in a better performance next time she visits with Congress, she should study this brief film.