March 19, 2005
Did Mark McGwire Take the Fifth?
I did not watch the full testimony of the baseball players panel appearing before the House Government Reform Committee, but as best I can tell Mark McGwire took the Fifth without taking the Fifth -- a neat trick. Clearly the Committee members decided not to push the issue of requiring McGwire to answer affirmatively whether he has ever taken steroids or assert his right not to incriminate himself, otherwise the gloss on the hearing as an investigation of baseball's current steroids policy would have been blown. McGwire's prepared statement (available here) which he read to the Committee does a bit of a fast shuffle, never coming out and saying he will refuse to answer questions by asserting the privilege against self-incrimination, presenting himself instead as a "stand-up" guy who does not want to implicate friends and former teammates: "I have been advised that my testimony here could be used to harm friends and respected teammates, or that some ambitious prosecutor can use convicted criminals who would do and say anything to solve their own problems, and create jeopardy for my friends . . . My lawyers have advised me that I cannot answer these questions without jeopardizing my friends, my family, or myself." Of course, the Fifth Amendment cannot be asserted to protect family, friends, or anyone other than the witness, and asserting that the reason for not answering questions is because of ambitious -- which apparently means unscrupulous or unethical -- prosecutors shifts the focus away from the real reason for not answering questions. It's all a sideshow, and asking McGwire whether he used steroids is hardly worth the time of a congressional committee. His lawyers did a nice job of protecting him without the need to announce to the world that he believes his answer may be used to incriminate him in a criminal proceeding. (ph)
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