22 May 2013

The Fifth Amendment and partisan justice

The most surprising item so far in the commentary on IRS official Lois Lerner's "taking the Fifth" before a congressional committee today is an approving citation by a Wall Street Journal blogger of a Warren Court decision in favor of an alleged Communist. From all appearances, James Taranto is a fan of neither the IRS nor the Obama administration. But he holds back from joining the bloodhounds baying at Lerner's heels on the assumption that taking the Fifth on the question of selective scrutiny of Tea Party groups applying for tax exemptions proves that Lerner has done something wrong or even criminal. Taranto's job, it seems, is to surf the internet, and in doing so he discovered Slochower v. Board of Higher Education, a 1956 decision in which the high court overturned (by a 5-4 vote) the dismissal of a Brooklyn College faculty member who had taken the Fifth on the question of Communist party affiliation. The majority ruled that the city ordinance ordering the summary dismissal of any city employee who took the Fifth in cases related to their work violated the constitutional guarantee of due process. The majority opinion, cited by Taranto via the Outside the Beltway blog, states the principle at stake more generally:

[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.

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