[W]e must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment.... The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.
The Court cited an earlier decision in which the majority acknowledged that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing." This seems to be Lerner's position, since she prefaced her non-testimony with a declaration of innocence. Precedent appears to endorse her stance, a point lost on many of Taranto's fellow conservatives, and on some liberals who have called for Lerner to resign. At issue is what it means to "incriminate" oneself, and a distinction between prosecution and the law itself. Lerner's assumption seems to be that the House committee, or at least Rep. Issa, is out to prosecute (or at least persecute) her regardless of the law in the case. The power to prosecute -- even the power to investigate -- is a power liable to abuse. Lerner wouldn't be alone if she believed that Issa and other Republicans mean to abuse their authority by holding investigations, or worse, for essentially partisan reasons. It remains questionable whether the selective scrutiny that has so scandalized many people rises to any level of criminality. Republicans and their allies can cry "no fair!" all they please, and they'll probably get sympathy not just from their base this time but also from all those prone to give dissent the benefit of the doubt. Whether Republicans themselves give dissent the same benefit of the doubt is another matter. It seems instead that many of them equate disagreement with their views with a conspiracy to impose tyranny on the land. A similar attitude toward Communists led to the law that the Supreme Court rebuked in Slochower. Republicans in the House of Representatives have the power to interpret law according their paradigm of encroaching tyranny and their self-assigned role as the last line of defense. Slochower seems to remind us that so long as different groups can see the same phenomena so differently, taking the Fifth can't be the last word on anyone's guilt or innocence. In our world, it may mean that someone has "something to hide," but someone might have good reason to do so. That's not necessarily true in Lerner's case, but it could be, and the Constitution seems to require us to give her the benefit of the doubt until we have more reason not to.