Will Clemens take the fifth?

Roger Clemens' situation in a nutshell: Damned if he talks, and damned if he doesn't.

Roger Clemens might be known for answering the call when it's his turn to pitch, but several legal experts believe he should invoke the Fifth Amendment and refuse to testify about steroid abuse before Congress today and next week. Otherwise, he risks the chance lawmakers could refer him to the Justice Department for criminal investigation.

"As a lawyer, I'd recommend he take the Fifth and be overcautious," said high-profile criminal defense attorney Alan Dershowitz, who also is a Harvard Law School professor. "When Clemens was pitching, he never took the cautious way. He's being consistent with his personality. Of course, his world isn't a legal world; it's the world of halls of fame and reputation."

Clemens, who was linked to steroid use in baseball's Mitchell Report but has maintained he never took performance-enhancing drugs, is scheduled to be privately deposed today by staffers for the House Committee on Oversight and Government Reform. He and other witnesses, including Brian McNamee, a former trainer for Clemens who said he injected the pitcher with steroids, are scheduled to testify in public to the full committee Feb. 13.

Dershowitz said Monday that even people who testify truthfully can be prosecuted if the government believes they are lying. If Clemens invokes his Fifth Amendment right against self-incrimination, he could avoid a congressional referral for possible perjury or false-statement criminal charges, Dershowitz said.

Clemens' lawyer, Rusty Hardin, agreed that his client logically should invoke his Fifth Amendment privilege to protect himself.

"Dershowitz is right, and just about every attorney in the world will tell you he should take the Fifth because of the risks," Hardin said.

But that's not what Clemens will do, Hardin said Monday.

"Roger is saying (that) what the public thinks of him and his career are important," Hardin said. "And if he takes the Fifth, he lets the Mitchell committee do to him by omission what they've essentially done by commission."

That this is the path he's chosen to take isn't surprising. It's who he is. And let's be honest, being perceived as evasive didn't do Mark McGwire any favors. Of course, denying everything didn't help Rafael Palmeiro much, either - it does help to tell the truth, at least as far as the truth is what people want to hear. I wish him the best of luck, and hope he's not setting himself up for a fate worse than public suspicion.

Posted by Charles Kuffner on February 05, 2008 to Baseball