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Saturday, August 21, 2010

Lose Reputation, Keep Your Freedom: Why Clemens Should Have Shut Up

Roger Clemens was indicted for lying to Congress in connection with its investigations into steroid use by professional athletes.

In general, people facing possible litigation in any scenario, but particularly if they are under government scrutiny -- and most particularly if they have a "name" who can add cachet to a prosecutor's resume -- should resist the temptation to try to explain things away and should strongly consider just remaining quiet. Of course, experienced and reputable counsel is a must in any such situation.

Unless Clemens knows that he is telling the truth, his testimony before Congress in early 2008 could prove his undoing (whether he is guilty or not) and lead to his conviction and incarceration. The dilemma Clemens faced was that silence in such a situation could have led to snickers that his silence equated guilt. (In fact, the snickers were there for years beforehand, and likely would never go away under any circumstance.) Hence, Clemens chose to testify before Congress, despite almost certainly having been warned by counsel (in Clemens' case, by a team led by Texas lawyer Rusty Hardin) that his testimony could allow for investigators to "set in stone" his version and then work to debunk it in order to build the perjury case which has now been brought.

From my standpoint, in general, any comment by a prospective target of an investigation could lead to civil or criminal charges, even if the target had done nothing wrong to begin with. There is always a risk of talking on the record, because -- at best -- it gives an opportunity for investigators to compare one's version with someone else's and claim (sometimes, wrongfully) that any contrast in the versions of events equates to criminal perjury.

As a result, while silence may lead to reputational damage (which arguably is unavoidable) and a devaluation of the "brand," it would likely preserve the target's freedom and prevent a civil or criminal case from being brought.

Clemens' undoing (again, whether he's guilty or not) may come from his decision to place defending his reputation above all else. It may cost him his freedom.

However, people in his situation -- and most especially, anyone with a high profile -- have to come to grips with the reality that there are always going to be snickers, no matter how "clean" you are. Being a high-profile person, someone who has "become somebody" and "achieved something," does mean that you will be a target of others' schadenfreude -- the desire to see you fall, or fail. 

To my mind, the failure to accept this fact is a form of mental weakness and a serious professional vulnerability.   One of the things I do professionally is help people in such situations develop the mental toughness, and character strength, to absorb and resist these snickers and public criticism so that they can ultimately withstand the pressure of litigation and be in a position to prevail in the only court that counts -- the court of law.

Count me as among the shocked, that people who have accomplished great things and been accustomed for decades to being in the public spotlight have not accepted the basic fact that criticism from others is an inescapable part of being in the public eye. The fear of criticism and desire to eliminate it seems to lead some of these people to say and do things which are simply not in their best interest from a legal standpoint. Had Martha Stewart heeded this advice and simply refused to speak with investigators regarding the insider trading allegations then swirling around Imclone president Samuel Waksal, Stewart almost certainly would never have been investigated, criminally charged and ultimately convicted of lying to investigators in 2004.

Sometimes, silence is the best policy, even when it makes you look bad.

Eric Dixon is a New York lawyer. He can be reached at and at 917-696-2442.

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