Limits on Roger Clemens pleading the fifth before congress?

January 7, 2008 9:14 PM

What are the limits to "pleading the fifth" when providing testimony to Congress? This has come up in the context of a friendly debate at a bar about Roger Clemens impending testimony before Congress. A few folks have suggested that he's suing Brian McNamee for the sole purpose of providing himself cover - i.e., that he can refuse to answer questions asked by Congress because of his civil suit. As I understand it, this isn't correct - he can "plead the fifth" if he's afraid of incriminating himself, but the fact that HE is suing someone else doesn't provide any additional cover. On the other hand, if McNamee was suing him, then he might be able to use THAT as the basis for a fifth amendment excuse. Is this correct? Obviously, I'm not looking for legal advice - just a credible opinion that might help settle a friendly bar debate...

A follow up - if Clemens is afraid that his testimony before Congress would incriminate him, he can plead the fifth. If Congress offers him immunity, can he still plead the fifth because his testimony could incriminate him in another jurisdiction? Could he plead the fifth because he thinks he might be sued civilly in the future? Can he plead the fifth because he thinks his testimony might impair a suit he's brought against someone else?

posted by stuehler to law & government (6 comments total)

The Fifth Amendment generally is not available in the context of civil litigation, it is available only to protect ones "penal" interest. This doesn't mean it can't be invoked in a civil context: if one is called to testify in a civil action or before congress, and one has a reasonable fear that such testimony might lead to a criminal prosecution (in any jurisdiction, at least in the US), then one may invoke the privilege. However, you can't invoke it because you think it will hurt your position in a civil case. (Well, mostly. There are exceptions for pseudo-criminal civil proceedings, but that's good enough for your bar bet.)

In the civil context, note that invocation of the privilege is not necessarily evidentially neutral -- that is, in a criminal trial invocation of the privilege cannot be used as evidence of anything, in a civil case, that is not necessarily the case.

This is complex stuff, IAAL, but IANYL and this is "bar bet only" advice.
posted by The Bellman at 9:35 PM on January 7

Right, he can take the fifth only to prevent himself from incriminating himself in a criminal context, i.e. he can avoid giving testimony which could later be used to convict him of a crime. Then they can offer immunity, and there are several different types with different risks for him. If he wants to redeem his reputation though he had better not refuse to answer any questions. I respect this man's athletic achievements, drugs or no, but I don't like him. I hope the allegations are false, for the sake of baseball, so more power to him in his lawsuit.
posted by caddis at 9:47 PM on January 7

The two posters each get A+'s. The fact that he is suing someone in civil court (the trainer), means nothing regarding his Fifth Amendment rights. Those protect him from being forced to incriminate himself on the stand under oath (his penal interest). However, Rep. Henry Waxman, a guy on a mission, can offer him immunity. This means that he has no penal interest to protect, and is therefore left unprotected by the Fifth Amendment.

There's a ton of wiggle room in the statements being offered by counsel for Mr. Clemens. Were I his counsel, I would delay appearing and let things die down until Friday afternoon of Superbowl week, where I would quietly send a letter to Waxman giving some legal reason why he will not appear voluntarily. Poof.
posted by Ironmouth at 10:18 PM on January 7

oh, yeah, not your lawyer blah blah.
posted by Ironmouth at 10:18 PM on January 7

Congress can respond to this in one of four ways.

They can accept it and let him go.
They can disbelieve it and cite him for Contempt of Congress.
They can grant full immunity, and then compel testimony. That's effectively a pardon.
They can grant limited "use" immunity, and then compel testimony. That means he could still be tried, but his testimony in front of Congress could not be used as evidence.

That latter is what they did to/for Oliver North, but his testimony was so high profile, and got so much publicity, that as a practical matter it made it impossible for him to get a fair trial, which is why he was never charged. (His lawyer told him that was what would happen, which is why if you've seen any tapes of his testimony he seems so cheerful. He sings like a bird, because he knows that he won't be tried for anything he's confessing to.)

If the witness is granted full immunity or use immunity and still refuses to testify, then that would also be Contempt of Congress.
posted by Steven C. Den Beste at 10:30 PM on January 7

He's worried about being excluded from the Hall of Fame, and refusing to incriminate himself is a de facto admission of guilt-- "Yes, there are some things I can't talk about because I will incriminate myself" will protect him from prosecution, but it's still saying "I did something unseemly, but I'm exercising my right not to tell you what it is." If he does that, baseball writers won't be in doubt that he cheated and it will terribly hinder his Hall of Fame chances.

This is the United States and Clemens is a very rich man. Brian McNamee has no reason to lie about this, but Clemens and his lawyers must feel very strongly that there's not enough evidence to prove anything. Therefore he can sue McNamee and lose-- he's got plenty of money and the suit sends the message that Clemens vigorously denies the allegations. Additionally, because of the assumed lack of evidence beyond McNamee's testimony, he can purger himself before congress and not worry that he'll suffer any repercussions for it.

This is textbook modern PR "plausible deniability"-- when it comes time for the baseball writers to vote, he's hoping most of them will say "well, there's no physical evidence and he vigorously denies the allegations, so I'll give him the benefit of the doubt."

The late Will McDonough was spot-on when he nicknamed Clemens "The Texas Con Man."
posted by Mayor Curley at 5:19 AM on January 8