Lois Lerner: The Fifth Amendment–and the First Amendment

Bear with me as I travel back in time to make a connection between the 1’st and 5’th Amendments to the Constitution.

Years ago back in 1964, I was attending a Navy technical school, and I remember a discussion some of us young sailors were engaged in. The subject of the conversation escapes me, but the 1’st Amendment came up in such a prominent way that I distinctly remember making the following comment:   “I may not agree with what you are saying, but I will fight to the death for your right to say it!”

The 1’st Amendment states:

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The 5’th Amendment states:

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 offense 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.

Little did we know at the time that in short order we would all be sent to a shooting war and would be defending those two amendments as well as the entirety of the US Constitution. I don’t’ recall having  the clarity of thought that would connect my bold statement of defending liberty to the death with my subsequent tour in the combat zone known as Vietnam – but the statement and the thought has remained with me over the years.

I don’t hear such conversations much anymore – were they just the idle conversations of immature and naïve young sailors? Or did they reflect perhaps a more ingrained sense of duty and obligation – a sense of obligation that recognized the importance of defending the liberties as set forth in our Constitution … and in our history as a nation … in our history as a culture … in our history as a great civilization.

I would like to believe that if I were engaged in a similar conversation today I would again step up in defense of that 1’st Amendment – and the 5’th … which leads me to Ms. Lerner’s invocation of the 5’th Amendment.

I don’t agree with Ms. Lerner’s invocation of her 5’th Amendment right and what it implies about her activities at the IRS … but I will fight to the death for her right to  invoke it in her own self defense.

But I would hope that those of us, like Ms. Lerner, who have been placed in positions of  high trust and authority as servants of the people, would – of their own volition place themselves in a posture of highest visibility and vulnerability and waive that 5’th Amendment privilege.

Servants of the people like Ms. Lerner should  individually understand and internalize an obligation first and foremost to those people she has been entrusted and empowered to serve. This obligation should rise above self interest, should rise above politics, and should arise above “Political Party” loyalties. This obligation should transcend even personal risk such as criminal prosecution and internment.

So I place our public servants in a class at once above and below that which the ordinary citizen occupies; a higher class in the sense that higher and more noble things are expected – and a lower class in the sense that they are at bottom … servants of us all – no more … no less. Occupying the class at once above and below the ordinary citizen places them exactly where the rest of us are … citizens of a great nation morally obligated to do the right thing.

Surrendering her 5’th Amendment rights, places Ms. Lerner in jeopardy … no doubt about that. But the remainder of the legal proceedings offers much protection to her  – a spirited defense by supporters in Congressional committees can be expected … committee votes with respect to recommendations for further action – criminal or otherwise. And finally, in the event that criminal investigations and prosecutions be justified from Congressional hearings, then she is afforded the full protection of the law, under the Constitution, including the presumption of innocence, the right of a trial by a jury of her peers,  the right to invoke the 5’th Amendment, and the right of appeal in the event of conviction.

What is the up-side to her testifying voluntarily and truthfully? That remains to be seen, and remains a mystery.

What I do know is that a large and ugly stain has descended on the fabric of the  nation, and trust has been dealt a brutal blow. Perhaps this stain can be, at least partially, expunged  and healed by a complete and exhaustive investigation into the matters at hand. A large part of this healing could be offered by the honest heart of a truly honest and open Civil Servant.


Don Johnson – March 2014


One response to “Lois Lerner: The Fifth Amendment–and the First Amendment

  1. Reblogged this on A Yearning for Publius and commented:

    Relevant to todays ‘kneel’ news.

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