Clemens’s Lawyers Negotiating Deposition

By MICHAEL S. SCHMIDT and DUFF WILSON

Published: January 14, 2008

When Mark McGwire and four other baseball players testified in front of Congress three years ago, they did so under oath but were not forced to give depositions in advance of their testimony.

Even without giving a deposition, McGwire was easily painted into a corner at the hearing. He infamously answered, “I’m not here to discuss the past,” when asked whether he had used steroids. The hearings hurt McGwire’s image and severely hampered his chances of being elected to the Hall of Fame.

The situations will be much different for Roger Clemens and Brian McNamee, his former personal trainer, who are scheduled to testify Feb. 13 in front of the House Committee on Oversight and Government Reform.

Clemens and McNamee will probably be deposed in the coming weeks by lawyers for the committee, a sign of how serious it appears to be taking their conflicting stories.

Preparations for those depositions are already under way. Clemens’s lawyers are planning to go to Washington on Monday to meet with officials from the committee to address the circumstances surrounding his deposition. They want Clemens to be questioned publicly, and are concerned about how private testimony could be used against him.

“The implication that Roger is having second thoughts about testifying in front of Congress in public are completely false,” his lawyer, Rusty Hardin, said Sunday in a telephone interview. “We are concerned about the procedures and other things Congress wants leading up to that testimony, and we will address those matters when we go to Congress tomorrow.”

Clemens has said McNamee injected him with the painkiller lidocaine and vitamin B12 on several occasions. Earl Ward, McNamee’s lawyer, has also said that McNamee was prepared to testify about an abscess Clemens developed in the area where he said Clemens was injected.

The committee chairman, Henry A. Waxman, Democrat of California, had said that he expected Clemens and McNamee to answer the invitations voluntarily.

But Philip M. Schiliro, the chief of staff for Waxman and the committee, said of Clemens on Sunday, “He can refuse to come in voluntarily, but if the committee feels strongly, it can subpoena him for a deposition.”

The committee procedure provides for confidentiality of the transcripts. The transcript can be released by vote of the committee or by agreement of the chairman and ranking minority member.

If somebody under subpoena refuses to answer a question, that person can be held in contempt of Congress, said J. Keith Ausbrook, Republican general counsel to the committee.

Depositions, according to Daniel C. Richman, a law professor at Columbia University, will allow the committee to pin down McNamee and Clemens on specifics surrounding their comments.

Hardin said another issue he planned to address with Congress was its request for a tape of an interview his investigators did with McNamee last month, the day before the release of the Mitchell report.

Hardin had said he did not want to provide the tape if the committee was going to provide it to McNamee before he testified. The committee can subpoena the tape if it is not provided voluntarily.

Ward said that investigators for Hardin asked McNamee in that meeting to change his story about Clemens’s use of performance-enhancing drugs.

The committee staff said it wanted to review the tape to assess the credibility of both sides’ assertions and to better prepare to question McNamee and Clemens.

Ward, meanwhile, said he would speak with committee staff members on Monday about securing immunity for McNamee. McNamee entered into a proffer agreement with federal prosecutors to avoid being charged with steroid distribution. As part of the agreement to tell the truth, he told investigators working for Mitchell that Clemens used steroids.

When speaking of the proffer agreement, Ward said, “It is important to understand it does not protect him from lying; we are just trying to protect him for being prosecuted for steroid distribution.”

News source：http://www.nytimes.com/2008/01/14/sports/baseball/14clemens.html?_r=1&ref=baseball&oref=slogin