OT-Does it pay for Clemens to take the 5th?

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Posted By: Corey R. Shanus

This is directed to some of the legal eagles on this board.

Inasmuch as Clemens has testified under oath at his deposition that he did not take PEDs, does he have anything to gain by pleading the 5th amendment at tomorrow's hearing? Is not lying under oath at the deposition grounds for a perjury (and possibly obstruction of justice) conviction? Or can it be said that by not lying further (by taking the 5th) will prevent him from digging his hole any deeper and thereby lessen the chances of either indictment or incarceration if convicted?

Just curious, as I've heard some commentators surmising that Clemens's attorneys are carefully explaining to him his 5th amendment options, which I'm not sure makes much sense for him to take unless he retracts his prior testimony.

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Posted By: Dan Bretta

I'm not a lawyer, but in the court of public opinion it will hurt Clemens to take the 5th tomorrow. They should all have taken the Andy Petitte route and told the truth from the start...people are forgiving to those who admit their faults. Taking the 5th is an admission of guilt in my opinion. Just ask Mark McGwire.

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Posted By: Corey R. Shanus

I agree honesty is the best policy; I just don't see Clemens doing that. What I was wondering is that IF by taking the fifth (while not retracting his previous sworn testimony) he can lessen the prospects of a criminal conviction. If so, I see it plausible he would be advised to do so. The rationale will be it will improve his chances of not going to jail AND at the same time still allow him to make the argument that he never took PEDs. That coupled with a line of attack that he took the fifth not because he has anything to hide but because the proceedings at this point have become a witch hunt and that he cannot get a fair shake. His team will then mount an all out blitz against both the committee and the IRS agent who now has taken a keen interest in the case. If this all seems a bit desperate, it is. But Clemens seems as crazed as Pete Rose was in maintaining his innocence, regardless of the evidence against him. And crazed people do stupid things.

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Posted By: Jeff Lichtman

Corey, correct me if I'm wrong but Clemens already given Congress a deposition, under oath, about these issues. Taking the Fifth now would be of no moment. Plus, as pointed out, the one percent of America that does not believe he's a juicer will finally be convinced.

Based on the bad advice Clemens' attorneys have given him to date, I expect him to lie again and very possibly be prosecuted. I guess we'll have to see what Pettite said....

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Posted By: Ed Ivey

Who takes lidocaine in the butt, anyway?

Isn't it a local?

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Posted By: Jeff Lichtman

I dunno; ask Mrs. Clemens.

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Posted By: Dan Bretta

Just make sure Roger isn't around when you ask Mrs Clemens if she takes it in the butt.

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Posted By: Jeff Lichtman

Dan, I had refrained from making the obligatory "Debbie Clemens takes it in the butt" joke; I'm glad it was you who cleaned that one up.

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Posted By: Dan Bretta

If someone sets it on the tee I'm going to knock it out of the park. Thanks!

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Posted By: Frank Wakefield

Seems to me that Mr. Clemens has made some unfortunate decisions in this matter; that he's not followed advice of counsel as to what to do but maybe advice as to how to go about an ill-advised course selected by Clemens himself.

http://tinyurl.com/2vhbjb>
a link to the NY Times bit about Clemens appearance.

I think that the 13 colonies had governments... States. The States were here first. They united together to form a Union with limited powers. Those powers are set out in the Constitution, a power limiting document. It doesn't give us rights, as is taught in school. What it does is limit the power of the Federal Government. (Read it, it doesn't say we have 'freedom of speech', what it says is that 'Congress shall not abridge our freedom of speech', it limits what the Feds can do.)

The Feds and Congress get to represent the States in a United front in international affairs, maintain a navy, raise an army when necessary, regulate commerce between the States, deal with wars.... about everything else is reserved to the States. I think Congress has absolutely NO BUSINESS holding hearings on baseball or steroids in baseball. I think it is an abuse of power. I'd like to see Clemens keep quiet, then sue their socks off and win. And I'd like to see this whole mess keep him out of the Hall. 'Cause it seems obvious that he was way more involved in this mess than he is willing to admit. Still, it is not any of Congress' business. Let them focus on Afghanistan, on getting out of Iraq, on fixing the economy and social security. And let them stay out of baseball.

Maybe I should be glad they're fooling with it. I asked a wise Libertarian friend of mine what he thought about Congress trying Clinton's impeachment. (I thought it was crap that the first thing they did was agree to accept everything by way of affidavit, meaning there would be no witnesses testifying, not trial as we perceive one.) My friend said he was glad that Congress was trying Clinton. I asked if he hoped for a conviction. He replied that he cared not about a conviction, but hoped it lasted at least 7 months. I asked why???? He said, "Because while they try Clinton they won't be passing any laws." I liked that.... Today, if Congress focuses on baseball hearings, at least they won't screw anything else up!!!

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Posted By: Solomon

I don't think pleading the 5th is even a consideration. Clemens is going to take this to the mat - his adamant denials is what has led him here in the first place. Without the Mike Wallace interview, and the public back and forth with McNamee, Congress would have never investigated.

I don't think Clemens is even considering perjury charges, whether he's telling the truth or not. He believes in what he's saying, hook, line and sinker.

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Posted By: Peter_Spaeth

As stated last time we discussed this, I would not necessarily blame Clemens' attorneys. A multimultimillionaire with a huge ego who has been put on a pedestal for all his adult life and never had any adversity (that we know of) is not exactly the easiest client to control, even if potential criminal charges are involved.

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Posted By: Corey R. Shanus

I agree with that -- that taking the 5th now would be of no consequence given his prior sworn testimony. However, not being a criminal attorney, I was a bit taken by some of the pundit analysis I'd been hearing. You confirmed what I thought.

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Posted By: Jeff Lichtman

Peter, I don't really agree. Clients that are high profile tend to have egos that make it difficult to manage them; however, as a lawyer, if they don't accept your advice you either: a) convince them to listen to you; or b) quit. If you don't choose one of those paths you're really not doing the client any good as an attorney.

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Posted By: Peter_Spaeth

Jeff I speak from the civil context which I acknowledge may be different, but I don't share that viewpoint. Clients ultimately have to make certain decisions and all one can do is give them the best advice possible to inform those decisions. I would not make representation contingent on the client always taking my advice. If I were Clemens' long-time attorney and he rejected my advice and acknowledged that he was making that choice, I think my reaction would be, well I can still represent him better than anyone else so I will keep doing so -- as long as I would not be suborning perjury or doing anything else unethical. For example, would it really be doing Roger any favors to have a change of counsel, what message would THAT send to the public?

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Posted By: leon

What you are saying is that you are a professional arguer? It's like my analogy of someone that paints houses versus someone like me, that only "can" paint houses. It's not that you "can" argue, it's that you "argue".....Saturday should be a hoot....

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Posted By: Jeff Lichtman

Peter, I think because the stakes are different in the criminal context sometimes the decision whether or not to follow a lawyer's advice might be a bit heavier as well. I'm not suggesting that anytime a client disagrees with me I would quit the case -- that happens every day. But there are certain very crucial decisions that if a client just refuses to follow advice and I feel that it will destroy the represenation and the result, I would rather not be involved than to watch the Titanic go down. Plus, if a lawyer and a client are at such odds on such an important criminal issue, it's probably for the best that the client get a lawyer who is more in tune with him on the chosen legal path.

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Posted By: davidcycleback

A lawyer can't legally advise his client to lie to Congress. If they are law abiding, it wasn't Clemmens' lawyers idea that he lie to Congress. If the client can't tell specific truths due to the possibility of self incrimination, that's what the fifth is for.

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Posted By: jeffdrum

I really don't have an opinion about whether Congressional involvement is a good thing or just bad theatre. What I do think is that if the people who run and profit from baseball and its anti-trust exemption had shown any inclination to police themselves we would probably not be here.