Pleading the Fifth Doesn’t Make You Guilty

By
Lois Lerner.

Lois Lerner, an official at the center of the IRS's ongoing conservative-targeting scandal, announced today that she plans to plead the Fifth if forced to appear before Darrell Issa's House Oversight Committee tomorrow. At the same time, her lawyer maintains her innocence. “She has not committed any crime or made any misrepresentation but under the circumstances she has no choice but to take this course,” the lawyer's letter contends. 

Predictable scoffing has ensued. If you're pleading the Fifth, you obviously have something to hide. 

We don't know if Lerner is innocent or guilty of any crimes. But it's worth pointing out that innocent people, as well as guilty people, can have perfectly justifiable reasons to plead the Fifth.

The Supreme Court affirmed this in Ohio v. Reiner. The 2000 case concerned a man, Matthew Reiner, who had been charged with killing his baby, Alex. The man's defense was that a babysitter, Susan Batt, was actually responsible for the baby's death. Even as she maintained her innocence, Batt pleaded the Fifth. The Supreme Court, in a unanimous per curiam decision, found nothing wrong with this

 Batt had "reasonable cause" to apprehend danger from her answers if questioned at respondent's trial .... Batt spent extended periods of time alone with Alex and his brother in the weeks immediately preceding discovery of their injuries. She was with Alex within the potential timeframe of the fatal trauma. The defense's theory of the case was that Batt, not respondent, was responsible for Alex's death and his brother's uncharged injuries. In this setting, it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her. Batt therefore had a valid Fifth Amendment privilege against self-incrimination.

The thing to understand is that "self-incrimination" is not tantamount to "admitting guilt." Self-incrimination can mean providing any information that might be used against you, fairly or unfairly. Lois Lerner may sincerely believe that she's committed no crime, yet fear that the government — which is currently investigating the IRS — could nevertheless try to use her words against her. As the Court pointed out, "one of the Fifth Amendment's 'basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.'"