Two different stories (cont.)
Posted: Sunday January 6, 2008 9:55PM; Updated: Monday January 7, 2008 12:40PM
4) Will Clemens have to testify before Congress?
Clemens, McNamee, Andy Pettitte, Chuck Knoblauch, and former Mets clubhouse attendant Kirk Radomski have all been invited to testify before the U.S. House Committee on Oversight and Government Reform on Jan. 16. At that hearing, the Committee will examine the Mitchell Report and the broader topic of steroids in baseball. Clemens will likely have to appear, but, as in a civil trial, he could then invoke his Fifth Amendment privilege, provided, of course, he reasonably believes that answering specific questions from members of Congress could lead to him being criminally prosecuted.
Clemens did tell Wallace he would be willing to testify before Congress, and his attorney, Rusty Hardin, earlier stated, "Roger is willing to answer questions, including those posed to him while under oath." Parsing Hardin's statement, however, I wonder whether Clemens would be willing to answer every question while under oath? If not, Clemens might avoid a slander lawsuit from McNamee, whose lawyers have reportedly said that if Clemens pleads the Fifth before Congress, they would consider it an admission of guilt and no longer contemplate a slander lawsuit.
5) Can Clemens refuse to appear before Congress?
Clemens could decline his "invitation" from Congress, but could then be subpoenaed to appear. A subpoena is a written order that compels a party to appear at a particular place (in this instance Congress) and at a particular place and time. Failure to comply with a Congressional subpoena can lead to a criminal charge of contempt of Congress, which in turn can lead to incarceration. It has been reported that House Oversight Committee chairman Henry Waxman (D-Calif.) may pursue subpoenas of the invitees if any fail to show.
6) Why is Clemens suing McNamee for defamation?
Clemens' basic theory is that McNamee had an incentive to lie. As discussed above, McNamee signed a proffer agreement with prosecutors to reveal all he knew about the sale, distribution, and use of steroids in exchange for his revelations not being used against him. Arguably, the more he told prosecutors, the less likely they would pursue criminal charges against him.
There is a key difference, however, between filing a lawsuit and actually litigating it. Filing a lawsuit merely requires the statement of a claim, payment of a filing fee, and notice to the defendant. Though Clemens may genuinely believe that McNamee has wronged him, he could also be filing the lawsuit without the intent to litigate it. For instance, he and his attorneys may believe that filing a lawsuit would make his claims on 60 Minutes seem more believable. They could later drop the lawsuit before going to trial, and he would still preserve his Fifth Amendment rights should he eventually testify before Congress or a court. Of course, there are potential punishments for filing "frivolous" lawsuits, like one designed for public rather than judicial consumption, but a plaintiff can often provide ostensibly valid reasons for later dropping the lawsuit.
It is interesting that Clemens has not also sued Major League Baseball for libel, since it published and relied upon McNamee's allegedly false claims when denouncing Clemens in the Mitchell Report. Maybe he does not blame Major League Baseball for believing McNamee, especially since Clemens acknowledged his mistake in failing to speak with former Senator Mitchell. Similarly, he may believe that a legal claim against Major League Baseball would be too weakened by his failure to cooperate with Mitchell. More cynically, perhaps he and his attorneys do not want to open a can of worms that they cannot later close. Then again, since he preserves the right to later sue Major League Baseball for libel, he may be developing a legal argument or simply keeping his options open. In addition, as explained above, it is very difficult for public figures to succeed in defamation lawsuits.
Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.
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