Monday, January 7, 2008

"Tell me what you want me to do."

I'm not set up for live-blogging, but I am listening to the press conference right now.

Clemens and his lawyers taped the infamous Friday night phone call between he and McNamee. The transcript will probably be available in a few minutes. Initial impression:

Multiple times Clemens says "I want the truth to come out" or "I didn't do steroids" or words to that effect. McNamee never refutes him. Instead he is sheepish and says on numerous occasions "tell me what you want me to do."

It's too early to make any conclusions -- and the context of the press conference put on by Clemens' lawyers is obviously one-sided -- but McNamee does NOT come off well in the call.

I know many people are tired of this, but this is riveting stuff.

UPDATE: WOW! Really Riveting! Clemens gets angrier and angrier over the course of the questioning, and then abruptly ends the interview following an emphatic statement about how he doesn't care about the Hall of Fame and expresses his anger over the whole affair.

Snap judgments are always tough, but my initial reaction is that Clemens is being truthful. It's all so clouded by his anger, though, that this could go in any direction.

This was a really incredible 45 minutes.


Michael said...

This has come up a lot on other blogs and since you are a lawyer, I was hoping that maybe you could clarify this point:

A lot of folks (including ESPN's Steve Philips and Jayson Stark) are making a point about the fact that when McNamee asked Clemens "What do you want me to do?" that Clemens only said "Tell the truth". They're saying that Clemens, if innocent, should have said "Tell everyone I didn't do steroids". Would that be considering regardless of the truthfulness of that statement?

Michael said...

What I wanted to ask was...

Would that be considered witness tampering regardless of the truthfulness of that statement?

Shyster said...

If Clemens did do steroids and he says "tell people I didn't do steroids" he could be in monster trouble.

If Clemens did steroids and says "tell people the truth" he really can't be, unless there is some outside context that establishes that it was code or something.

Pete Toms said...

I've long thought that athletes don't know what they're taking and maybe this is an example.

They don't know winstrol from andro from stanozalol ( sic? ) and when there were no penalties in effect for usage why should they have been concerned other than for health reasons.

Clemens might honestly not know what he took. McNamee had him on " the program " and he liked the results. Maybe that's all he knows.

What is coming to light are the strong arm tactics of Novitsky et. al. Those of us who have been calling this a witch hunt all along are being vindicated I think.

None of this will change my mind about PEDs in sports but I agree with Craig, it is compelling.

Jason said...

I was trying the "listen & blog at the same time" thing, too, Craig and I came away being pretty impressed with the show. I understand we all wanted to push Clemens to ask the question or lead McNamee into admitting he (McNamee) lied, but couldn't for fear of tampering.

the "I'll do whatever you want me to do" was drama, no questions. Who needs the Writers Guild?!?

s1c said...

Shyster - isn't taping a phone call without both people's agreement a crime?

Now having said that, as Confucious says, "Guilty dog barks loudest". I think he used, I think he is setting himself up for the big fall, this is not Anderson(?) (the trainer for Bonds) who is willing to go to jail for Clemens. I also think the Feds will be stepping in, in fact I would not be surprised to find out that they are already investigating Clemens. Oh, this is going to be a soap opera!!!!!

Shyster said...


It is in some states, but in Texas (where Clemens was on the call) and New York (where McNamee was) the law only requires that one party to the call know it is being taped. Clemens knew, thus it is legal.

As for the barking dogs, please recall that everyone has shunned McGwire because he DIDN'T refute the allegations against him. The way so many are constructing this, if Clemens said nothing it's because he's guilty, if he denies, he doesn't deny vehemently enough, and if he denies vehemently, he's too defensive (i.e. the "guilty dog barking loudly").

How is he supposed to win?

s1c said...

How is he supposed to win?

I agree that he is in a no win situation, but what he might have done was to issue one statement - "I was never a party to taking the steriods and I think that Brian has some problems in his family life and is facing legal issues that has caused him to say these things that are not true. Since this is a case where I have to prove a negative and any legal actions taken by me would only add to a friends anguish, I have chosen not to do anything but issue this denial. I let my records and my work habits stand on their on merits, those who know me, know that it is my work ethics that have allowed me to pitch as well as I did in my career, those who don't know me can just have their fun. Thank you, and Brian my prayers are with you".

Of course I am just saying that on the fly, but I think you see what I am trying to get at in principle. In other words, I would have only barked once.

Chris Dankberg said...

Fairly new to your blog, referred by Neyer...

Quick question - I'm finding your perspective to be unique and interesting. But are you suggesting that Clemens has a compelling LEGAL offensive to this, or are you finding that you believe his denial?

I'm not a lawyer, but do you need a JD to arbitrate a game of he-said/he-said? McNamee may not have come across well in the taped interview, but Clemens didn't come off well in his press conference or a taped interview with buddy Mike Wallace.

It seems like Clemens especially is being coached by expensive counsel who is doing a pretty good job blustering in the face a of a less than credible adversary. But what hasn't been established is why on earth McNamee would lie about a guy he clearly thought the world of. Short of an absolutely sensational story of betrayal (like, for money and love), I have a really hard time believing that McNamee would lie to a federal prosecutor.

Shyster said...

Chris: glad you've stumbled on my ramblings! As for your questions:

I think Clemens is using the vagaries and difficulties of defamation law to his own PR advantage. You correctly note that it's a he-said/he-said situation, which in my mind makes a lawsuit difficult for either side in this mess.

This is a lot like nuclear deterrants. I think Clemens had in mind nothing more than a PR offensive until McNamee's lawyers said last week that they would sue. Fearing a suit, Clemens' folks had to file first -- which they did, right before the known trigger for a McNamee suit (the 60 minutes interview), ensuring that a battle will be fought in Texas, which is Clemens' home court.

But then a funny thing happened: McNamme's lawyers seemed to back down early today (see my post below re: the moonwalk). Now Clemens is in the awkward position of having a lawsuit filed that he didn't necessarily need to file, and can't necessarily prove. What else can he do but to play it out?

His chances? Actually better than I initially thought, even if he did use steroids. This is because we're finding instances of McNamee lying in other contexts daily, and if Clemens can paint him a liar about other stuff, it will be that much easier to convince a jury that he lied here too. Cynical? Sure, but I've been practicing law long enough to know that just because a strategy is a cynical doesn't mean it won't work. Quite the opposite, actually.

But let's forget all that for a moment and answer your question: why would McNamee lie? It could be like Clemens' lawyer said today: the feds told him that they believed Clemens was a juicer, had McNamee over a barrell, and more or less coerced him into confirming their beliefs. Don't laugh -- it happens more than you think. Actually, maybe you should cry.

But you know what? For all of the strategic posturing outlined above, I still tend to think it's possible that McNamee is telling the truth. Yesterday I was close to certain of it. Tonight, having heard that phone call and having wondered how Clemens could pull off such indignation if it weren't genuine, I am wavering. As of now I don't know who to believe.

Chris Dankberg said...

Thanks for the interpretation. I guess my feeling is that McNamee has a heck of a lot more to lose by lying than Clemens did. And seemingly, a lot less to gain, also.

Before I fell asleep last night, I had a thought very similar to this one. If McNamee is lying, that the entire Mitchell Report comes under question. I don't think McNamee is lying, but if this proceeds, you'd have to expect that Mitchell would weigh in.

Can you believe what Bud Selig hath wrought?