From Same Dugout to the Same Row Before Congress
Roger Clemens’s lawyer, Rusty Hardin, has advised him to testify under oath before Congress.
Roger Clemens’s plan to testify before a Congressional committee next week portends a scene made for the rolling television cameras: a longtime friend and former teammate, Andy Pettitte, being asked questions regarding Clemens’s possible use of steroids with Clemens sitting beside him.
The 41-member House Committee on Oversight and Government Reform has called hearings for Jan. 15 and 16 regarding baseball’s involvement with performance-enhancing drugs and the report on players’ drug use released last month by George J. Mitchell.
The first day will feature testimony from Commissioner Bud Selig, the union president Don Fehr and Mitchell. The second will focus on five others: three former Yankees players and teammates (Clemens, Pettitte and Chuck Knoblauch), and two men identified in Mitchell’s report as steroid suppliers to players (Brian McNamee and Kirk Radomski).
Although trials rarely feature witnesses testifying in front of one another, legislative hearings follow different rules that leave them considerably less regimented and therefore unpredictable. The environment increases the likelihood that Pettitte and Knoblauch will be asked pointed questions together about the simmering dispute between Clemens and McNamee, his former personal trainer. McNamee said he supplied and occasionally injected illicit drugs into Clemens, Pettitte and Knoblauch; Pettitte quickly confirmed the claims as they pertained to him, while Knoblauch has not spoken publicly.
Several people involved with the hearings said that there had been discussions of delaying the players’ appearance for unclear reasons, but that a decision had yet to be made. Clemens has indicated that he will attend the hearing voluntarily, Pettitte’s lawyer said it was “premature” to make a decision, and it was unknown who would represent Knoblauch as of Tuesday night.
As the committee exercises its authority to call witnesses to learn information for possible use in legislative policy, the hearing is shaping up to be an under-oath showdown between Clemens and McNamee, with Pettitte and Knoblauch as possible referees.
“I guarantee that question will be asked — ‘Mr. Knoblauch and/or Mr. Pettitte, what do you know about Mr. Clemens?’” said Charles Stillman, a New York defense lawyer who has represented clients in Congressional hearings. “They’ll have all of them sitting in a row like ducks, and question them at the same time.”
Stan Brand, a Washington-based lawyer who represented Major League Baseball during similar hearings before the same committee in March 2005, added: “These are wide-open, free discussions. It’s not like a trial where they’re confined to asking questions that have rules of admission or foundation in fact. They can ask or say whatever they want.”
Clemens electrified his dispute with McNamee during a furious 24-hour period Sunday and Monday, when he denied the allegations on “60 Minutes,” filed a defamation lawsuit against McNamee, and held a contentious news conference in which he played a less-than-revealing taped conversation between him and McNamee from three days before. Before storming off the podium, Clemens said that his lawyer, Rusty Hardin, had advised him to accept the committee’s invitation to testify under oath to try to clear his name.
Mitchell’s investigators attempted to speak with Clemens during their probe, but Clemens declined. His decision to testify before Congress now centers on his public image, Hardin said.
“If you’re trying to clear your name, you really have no choice,” Hardin said. “Your choice comes down to accepting quietly the public’s perception that you did something you deny doing — accept that burden for the rest of your life — or be willing to answer questions no matter what. I don’t think you can go part way.”
Clemens’s decision to testify does pose risks — primarily that his sworn statements could constitute perjury if they are later judged to have been intentionally false about a material fact. His testimony can also be used against him should he become subject to a criminal investigation like the inquiry in San Francisco that involved Barry Bonds, among others. Only rarely are Congressional witnesses given immunity, and Hardin said he would not pursue it for Clemens.
“The risk is you can create a prosecutable crime that did not exist before,” said Jonathan Sack, a New York defense lawyer. Rafael Palmeiro ventured into that territory in 2005, when he flatly told the committee, “I have never used steroids, period,” and months later tested positive for a steroid. His comments prompted the committee to investigate him for perjury, but its probe did not find enough evidence to pursue an indictment.
Hardin said that Clemens was in no danger of committing perjury, though he did foresee honest misstatements.
“He’s going to make his mistakes, I would expect, in his testimony before Congress, just like any other witness does,” Hardin said. “If that was all it took for perjury, we’d be in a hell of a fix. He’s a hell of a ballplayer, but in terms of Congressional testimony and the law, he’s an average person.”
Hardin said that Clemens was not concerned about sharing a table with either Knoblauch or Pettitte. Despite their friendship, Pettitte has lent credibility to McNamee by confirming the accusations about him. “One, Roger never took steroids,” Hardin said. “Two, I have no reason to believe they won’t tell the truth about Roger.”
Should Clemens decline to answer any questions by invoking the Fifth Amendment, it could confer an appearance of guilt and may damage his pending defamation case against McNamee. While criminal juries are instructed that a defendant’s taking the Fifth must not be interpreted as an admission of guilt, it can and is considered prejudicial in civil litigation, let alone by the public at large.
In 2005, though Mark McGwire did not take the Fifth, his sullen and vacuous testimony — “I’m not here to talk about the past,” he often said — painted him as guilty and he was publicly vilified, to the point that he has twice been denied induction into the Baseball Hall of Fame despite seemingly requisite statistics.
Hardin will almost certainly have less influence during Congressional testimony by Clemens than he would in a criminal or civil proceeding. Although lawyers can be present and generally sit behind witnesses, they rarely can object to the relevance or phrasing of questions, or to matters of evidence. Stillman, the New York defense lawyer, said, “Your lawyer is basically a eunuch.”
Hardin said that he would sit near Clemens during the hearing but probably would not consult with him.
“This is basically going to be Roger’s show with the committee,” he said. “The Congress will take the position he’s out on the mound alone.”
The House Committee on Oversight and Government Reform does not need to use baseball’s exemption from antitrust laws, which Congress has done on other occasions, as leverage to compel league and union participation. This committee has jurisdiction over national health policy, which it invoked not just with baseball in 2005 but also in recent hearings on the treatment of veterans at Walter Reed Hospital and the risks of the drug Vioxx, which coincidentally Clemens admits to having eaten like candy before it was off the market.
“As our first hearings tried to emphasize, there’s a public health issue here,” said Keith Ausbrook, Republican general counsel for the committee. “You hear stories of high school kids and college kids saying that they think steroid use is their ticket to professional sports. So if the professional sports leagues don’t stop the use of these drugs, it just encourages it.”
News source：http://www.nytimes.com/2008/01/09/sports/baseball/09clemens.html?_r=1&ref=baseball&oref=slogin
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