Why Roger Clemens, Even if Innocent, Should Take the 5th

05/25/2011 12:20 pm ET

Full disclosure: I'm a big Roger Clemens fan. I loved watching the Rocket pitch for Boston, and even when he was pitching for the Yankees, a part of me was rooting for him -- as long as he wasn't pitching against the Red Sox. I don't know whether or not Clemens took any banned substances. I watched him on 60 Minutes, and if I were a juror, I would have acquitted him.

So let's assume, for purposes of this blog, that he never in his life took a banned substance. He is now been subpoenaed to testify in front of a judicial committee. Were I his lawyer, I would insist that he invoke the privilege against self-incrimination if asked about unlawful steroid use.

Why should he possibly take the 5th, if he's innocent? Is he even allowed to take the 5th if he's totally innocent? These are good questions, but as a lawyer with 45 years of experience in these matters, I would advise him that there is a very good reason for taking the 5th and that he would be entirely within his rights to do so.

The 5th Amendment is not designed to protect only the guilty. It prohibits the government from compelling anyone to "incriminate" himself. Innocent people can incriminate themselves, and sometimes do.

Consider the context in which Clemens would be asked to respond to questions about steroid use. A report submitted by a former majority leader of the Senate, George Mitchell -- who I am also a big fan of, and admire enormously -- has concluded that Clemens took steroids. His trainer has said that he has taken steroids, and will presumably so testify, if he has not already done so. Who is Congress going to believe: the former majority leader of the Senate, and one of the most respected former members, or a baseball player who continues to win in his mid 40s? By testifying, Clemens will be walking into a perjury trap. He will be buying a potential indictment in which his liberty will be exposed to the whims of a jury.

Accordingly, he should continue to assert his innocence, but refuse to do so under oath. Will the public accept this? Civil libertarians, and those who understand how the criminal justice system works, will understand why an innocent man should sometimes take the 5th. Others may not, but the 5th Amendment is designed to protect against incrimination, not public opprobrium.

Here's the wrinkle. The one thing the 5th Amendment does not protect against is perjury. If Clemens were to be given immunity and then be forced to testify, and persist in his denial of steroid use, he could be prosecuted for perjury, despite the grant of immunity. But Congress may not choose to grant him immunity, and even if it does, a creative argument could be made that immunity should not be used to trap somebody into committing perjury.

In the end, Clemens will probably choose to testify because he is deeply concerned about his legacy. I understand that but I respectfully disagree. This is one fan who he will not lose even if he takes the 5th.