Republican Senator: Invoking The Fifth Amendment Is Evidence of Guilt

South Dakota’s Republican Senator John Thune had this to say last night about Lois Lerner’s decision to invoke the Fifth Amendment during today’s Congressional hearing:

“One thing is Lois Lerner is taking the Fifth . . . which would suggest there’s an admission of guilt right there,” Thune said on Fox News last night.

There’s something cynically political about this, of course, but as Eugene Volokh notes, it’s not something limited to Republicans. Here’s what Democrats and others on the left had to say in 1986 when Oliver North and John Poindexter invoked the right during the Iran-Contra investigation:

[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.

[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.

[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David Durenberger (R., Minn.) told reporters. “If they are such heroes, why are they deserting their country when they are finally being put to the true test?”

[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North’s voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.

So, it’s not above anyone to trash the Constitution for political purposes

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. legion says:

    Wow. Just… wow.

  2. Moosebreath says:

    I’ll give you Kinsley’s statement, Doug, but the last 3 don’t say or imply that North or Poindexter were guilty, just that they should not do so and expect to be considered public servants (which I would also say about Lerner).

    Also, I am not sure that Dole or Durenburger count as “Democrats and others on the left”.

  3. anjin-san says:

    So instead of taking Thune for a well deserved trip to the woodshed, you chose to dredge up something that happened a quater of a century ago and issue an apologia for witch hunting?

  4. @anjin-san:

    No I chose to point out a fact.

  5. Gromitt Gunn says:

    @Moosebreath: Yeah. Not really sure that the evidence cited supports the thesis statement.

  6. JKB says:

    So, it’s not above anyone to trash the Constitution for political purposes

    It’s practically required if you are politician in Congress or the Executive branch.

    When I got transferred to DC in late 1999, I was exposed to the “diversity” of Congressmembers and Senators on the local news. Not just the favored son/daughter you get back “home” where they aren’t a dime a dozen.

    Seen back to back, on a variety of topics, Republican or Democrat, one central theme seemed to prevail. They’d make life wonderful if it weren’t for the at bloody Constitution. That rhetoric abated after 9/11 and I left the local DC news broadcast area in 2004 before it got started in earnest again.

    It’s quite understandable. While we “non-elite” people out in the hinterlands see the constitution as a defender against government over-reach. To those politicals in the legislative and executive branches it is an obstacle to be overcome. A thorn in their side. A gate stopping entrance into their version of utopia.

    When you spend your days and nights with people who suffer under the same limitations you lose touch why those limitations were imposed and why others, not in your group, might think they are a good thing.

  7. anjin-san says:

    No I chose to point out a fact.

    It’s interesting, what our choices reveal about us.

  8. stonetools says:

    Well, fish gotta swim, birds gotta fly, and Doug gotta do his “Both Sides Do It” shtick.
    According to Doug, if 100 Republicans and 1 Democrat “trash the Constitution for political purposes” it’s somehow exactly the same.
    Gotta agree with Moosebreath. His sources don’t support his claim. If anything, it’s the opposite.
    So Michael Kinsley is now a Democratic spokesman? In what world?

    Michael Kinsley Humiliates Himself In Terrible Defense Of Austerity

    Read more:

    Kinsley on gay marriage.

  9. Is it “Both sides do it” or “I can’t condemn it because both sides do it?”

    I mean, it’s not very useful to point out the obvious…..

  10. Sam Malone says:

    That’s one hell of a reach to justify a BOTH SIDES DO IT wet-dream.
    Except in none of the purported examples, of Democrats doing it, did they say what Thune said.

  11. Caj says:

    This lady is within her rights to plead the fifth. Everything is unconstitutional, bogus, against the law, Obama did it, and on and on and on when it comes to Republicans!! It’s time for them to take a chill pill and get over themselves with their never ending nonsense!

  12. PJ says:

    Both sides do it! And let’s party like it’s 1986!!!

  13. wr says:

    @Doug Mataconis: I realize that BOTH SIDES DO IT, but not one of those quotes above said anything near what Thune did. They all trashed North for pleading the Fifth while simultaneously asking for praise as American heroes for what they did… but wouldn’t talk about.

  14. Septimius says:

    I hate to be the one to point out the stunningly obvious, but neither Oliver North nor John Poindexter were exactly innocent. Both were convicted of crimes related to Iran-Contra (though their convictions were later reversed.) Not really the best examples if you’re trying to argue that invoking the fifth amendment doesn’t imply an admission of guilt. Just saying.

  15. anjin-san says:

    Conservatives talkin’ ’bout
    Benghazi, IRS, even Fast & Furious
    This-ism, that-ism, Kenyanism, socialism
    Both sides do it now, Obama, Biden, Chairman Mao
    All we are saying is give us a pass
    All we are saying is give us a pass

  16. legion says:

    @Septimius: True. But those convictions were generated by court trials, not Congressional PR stunts.

  17. al-Ameda says:

    Hey, it’s John Thune, my expectations are very low.