This morning I wrote a post that, among other things, lauded the legal counsel Sammy Sosa appears to have been given in advance of his Congressional testimony in 2005. I said this:
[Sosa] said “To be clear, I have never taken illegal performance-enhancing drugs.” He said “I have never injected myself or had anyone inject me with anything.” He said “I have not broken the laws of the United States or the laws of the Dominican Republic. I have been tested as recently as 2004, and I am clean.” All of those statements allow for the possibility that he used substances that were legal in the Dominican Republic that would have been illegal to use in the United States.
I’ve said in the past that, contrary to the naysayings of others, Sosa was well-advised to have used an interpreter during his Congressional testimony. In light of yesterday’s news, this is even more true, because it now appears that he needed to thread a very tiny needle to keep himself out of legal jeopardy. From what I can see, he threaded it brilliantly, and as a fellow shyster, my hat is off to whoever advised Sammy back in 2005 for pulling off what I can only call a work of legal art.
In response, the always able, always game Jack Marshall offered this:
A point and a question, Craig.
The point is that Sosa’s statement at the hearing was so obviously threading a rhetorical and legal needle that it was one of the main reasons people (like me) became convinced that Sosa was a user and a liar. That’s legal art only if you are the kind of analyst who thinks “it depends what the meaning of ‘is’ is” is a slam-dunk rebuttal. Sure, it avoids perjury—-so does taking the 5th on the stand. But they both make you look guilty as hell. (Sosa’s statement is also deceit—-making a statement that is literally true but designed to deceive casual listeners into thinking it means something very different from what it really does mean. This is, as I’m sure you know, specifically designated as ethical misconduct for a lawyer in Rule 8.4 of the Rules of Professional Conduct if a lawyer does it personally. It is a form of dishonesty.)
Now the question: has anyone ever explained WHY a steroid user would take that 2003 test? To find out if the test works? If that was the point, then the union was actively attempting to assist players in cheating. Maybe a player was unsure if he was using steroids? No, even Manny isn’t THAT stupid. To make sure one’s name was on a list that was sure to end up in the hands of the Feds if the union didn’t destroy it seconds after it was compiled? The fact that there were “only” 104 players who volunteered for this only indicates to me that there were 104 morons using steroids, and the non-morons had the sense to take a pass.
I said in the comments that I’d offer a response, and for purposes of clarity (and not mucking up an already longish comments thread) I’ll offer it here. While it comes as a direct response to Jack, anyone and everyone is encouraged to chime in, of course.
I guess I’d start by once again saying that I am not particularly shocked that Sosa, apparently, tested positive in 2003. Moreover, while I can’t say I levelled any heavy judgement on Sosa at the time of his testimony, neither was I of the view that he was being particularly deceptive. McGwire’s words made it pretty obvious that he had used, but it was only a few weeks later when Rafael Palmiero was busted that I considered that Sosa would have the chutzpah to lie to Congress. I wasn’t blogging then, so I didn’t make a point of parsing his words. I think the most I did was make a mental note to wonder what would happen if he, like Palmiero, came up with a positive test. That happened yesterday, and it represents the first time I looked back at his statements. As I said in the earlier post, those statements all allow for the possibility that he (a) took steroids in the D.R. and (b) was still telling the truth. It wasn’t a moral approval of the tack he took before Congress. It was merely an appreciation that, technically speaking, that tack may have saved Sosa from committing perjury. I called it “art,” which is what I assume set you off.
But to answer your charge, I don’t find the “art” in Sosa’s statements in their success at providing “a slam-dunk rebuttal.” They don’t, as anyone who parses language for a living like we do readilly understands. We now know, with yesterday’s news, that Sosa was being verry careful in front of Congress, and someone walking that tightrope hasn’t really rebutted anything, let alone in slam dunk fashion. But like I said, his words did, I feel, prevent him from committing perjury, and keeping him clear of a perjury rap and/or drug rap and out of dutch with Baseball was what his lawyer was hired to do in that situation. Let his P.R. people deal with whether or not we think Sosa is a bad person or a liar in the general sense. The lawyer did his job, however much we may not like his job and all it entails. You mention the Fifth Amendment — I submit that if Sosa’s PED use was limited to legal drug use in the D.R., any assertion of the Fifth Amendment would itself be improper, but maybe that’s another conversation.
As for the ethical argument you do raise: we could argue whether “making a statement that is literally true but designed to deceive casual listeners into thinking it means something very different from what it really does mean” is the actual definition of “deceit” for purposes of Rule 8.4, but I don’t think that’s necessary. First off, as you note, that rule applies to lawyers, not lay persons, so it’s meaningless in this context. Second, Sosa was testifying before Congress, under oath. Congress has counsel and most congressmen are lawyers themselves, all of whom had carte blanche to challenge Sosa about anything he said, and the ability to back it up with criminal sanctions if they felt he was being untruthful. That’s not “the casual listener” as far as I’m concerned. I’m going to assume that, like you, several members of Congress and their counsel heard some questionable qualifying from Sosa that day. The fact that no one pressed him on it suggests that no one felt like they were being deceived by anything.
The question of why a player would take the test in 2003 was answered in the other thread, but to save people from clicking back, the 2003 survey testing was “voluntary” only to the extent that the Players’ Union agreed to the program and its consequences. Under it, every player was tested druing spring training — twice, actually — and then an additional control group of 240 players was tested later in the season. As many players admitted at the time, there was a P.R. calculus to this in that, if the percentage of positives were low, the people going around and claiming that large percentages of players were using could be shouted down, and if the numbers were high and thus mandatory testing kicked in, hey, at least there was some rational basis for it beyond media hysteria. However cynical a calculation it was in the first instance, the fact that players knew the tests would come in March and more than 5% still tested positive indicates just how deluded some of these guys were.