Making the call (cont.)
Posted: Monday January 7, 2008 8:01PM; Updated: Monday January 7, 2008 8:01PM
3) Did Clemens have the legal right to tape the call without McNamee's consent?
Yes. Under federal law, so long as at least one party consents to the tapping of a call, the call can be recorded. That means that Clemens could tape the call without informing McNamee that he was doing so. Although about a dozen of states have passed their own laws requiring that both parties consent to the tapping of a call, neither Texas nor New York is one of them.
4) Any reaction to details contained in Clemens' complaint against McNamee that was filed in a Texas court?
In the complaint, Clemens contends that Brian McNamee lied to federal prosecutors under pressure of prosecution and that because of past life errors (namely being a suspect in a rape case that led to his termination from the New York Yankees) his credibility cannot be trusted. The credibility of McNamee was also subjected to inquiry in Clemens' news conference, though, as explained above, I'm not sure the strategy worked.
Clemens will have a difficult time succeeding in his lawsuit, in part because he is a public figure, a classification that makes it extremely difficult to succeed in a defamation lawsuit. As a public figure, Clemens would have to show that McNamee acted with "actual malice," meaning he knew or recklessly disregarded the probable falsity of his damaging statement. It is a very high standard to establish.
5) By filing a defamation lawsuit against McNamee, will Clemens not have to speak to Congress?
Some have wondered whether Clemens' lawsuit will insulate him from appearing before Congress. The answer is no. Pending civil litigation is not a valid basis for refusing to answer questions under oath. If Congress wants to him appear on Jan. 16, he better show up or risk being subpoenaed. Failure to comply a subpoena is grounds for a charge of contempt of Congress and, potentially, incarceration.
Clemens does, however, preserve his Fifth Amendment privilege, which protects him from disclosing information under oath that he reasonably believes could be used in, or give rise to, a criminal prosecution of him.
If McNamee is telling the truth, Clemens would be faced with three choices while testifying under oath: 1) admit the truth; 2) plead the Fifth; or 3) continue to lie.
Option 1 (admitting the truth) would be his best option, at least from a perspective that values good ethics and common sense. America may not be entirely forgiving, but Clemens could offer a potential sympathetic story, such as he used steroids not to "cheat" but to prolong a fading career, and that his initial refusal to tell the truth reflects the pressure of preserving an extraordinary legacy -- a pressure other players, such as Andy Pettitte and Brian Roberts, did not face when confronted with allegations in the Mitchell Report.
Option 2 (pleading the Fifth) would prevent him from perjuring himself, and thus escape any criminal liability that would occur if he lied under oath. The court of public opinion, however, would regard that maneuver as an admission of guilt. Pleading the fifth could also increase his vulnerability to civil liability, as it is permissible to draw an adverse inference from a party pleading the Fifth in a non-criminal proceeding.
Option 3 (continuing to lie) would be Clemens' worst option: lying under oath is grounds for perjury charges. Perjury is to knowingly lie under oath about a matter material to an investigation or case. To prove guilt, the prosecution would have to establish that Clemens knowingly lied, meaning his lie must not have been a mistaken belief or a misunderstanding. Perhaps Clemens could argue he misunderstood the question, as tried by some defendants in perjury trials, but it seems like a strategy unlikely to succeed.
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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