Thursday, February 14, 2008

A Tale of Two Witnesses

The hearing before the House Oversight and Government Affairs Committee was not very edifying as Roger Clemens and Brian McNamee tried to defend their veracity in occasionally sharp questioning from Congressmen, and neither man ended up coming across as particularly believable in my opinion.  From the outset, the hearing was simply a perjury trap, or at least an exercise to determine whether we could figure out if either one was telling the truth.  The prepared statements set the stage for the face-off about whether or not Clemens used performance-enhancing drugs.  Clemens' statement (here) asserts:

I appreciate the opportunity to tell this Committee and the public—under oath—what I have been saying all along: I have never used steroids, human growth hormone, or any other type of illegal performance enhancing drugs. I think these types of drugs should play no role in athletics at any level, and I fully support Senator Mitchell’s conclusions that steroids have no place in baseball. However, I take great issue with the report’s allegation that I used these substances. Let me be clear again: I did not.

McNamee was equally insistent, stating in the the first paragraph (here):

I was once the personal trainer for one of the greatest pitchers in the history of baseball, Roger William Clements.  During the time that I worked with Roger Clemens I injected him on numerous occasions with steroids and human growth hormone. 

While it's clear that at least one of the two is lying, by the end of the hearing both came across as less than truthful.  Clemens made any number of inconsistent statements in his deposition and testimony, and had a difficult time expressing himself when challenged (e.g. "misremembering").  McNamee fared little better, explaining that he failed to disclose information to prosecutors and changed his story by adding details as he remembered them, so he never told the same tale twice.  We were even treated to an extended discussion about whether Clemens attended a party at fellow baseball star Jose Canseco's house, an issue of almost no relevance to the Mitchell Report but the Committee investigation included an interview with Clemens' former nanny about whether he was at the event.  Clemens (and Canseco) denied he was there, while the nanny said he was -- who cares, because there was no indication that anything having to do with steroids or HGH took place, unless anyone seen in the vicinity of Canseco is presumed to use the stuff. 

The Committee made all of the documents, including deposition transcripts and affidavits, available on its website (here), in case you want to torture yourself further.  The big question that hung over the entire proceeding was whether the Committee would refer the case to the Department of Justice for a perjury investigation.  I suspect the Committee will forward the information to the Department and ask that prosecutors look into the matter, but the chances of a perjury prosecution emerging from this entire process are pretty slim, at least based on the evidence produced to date. 

If prosecutors want to go after Clemens, they will be hard pressed to get a jury to believe McNamee, who effectively admitted that he does not handle the truth very well (e.g. "a partial lie").  Information provided by Clemens' former teammate Andy Pettitte about conversations they had concerning HGH use was not helpful, but it is hardly the type of clear contradiction needed for a perjury investigation, especially when one of the discussions took place nearly ten years ago.  Clemens could not bring himself to call Pettitte a liar, but he did dispute his friend's memory of the conversations, throwing up enough dust to make it hard to figure exactly what was said.  The Committee also obtained an affidavit from Pettitte's wife confirming that he told her about a conversation with Clemens, but that is hearsay of the first order and would not be admissible at a criminal trial to prove what Clemens said.  While the syringes and other items produced by McNamee could well link Clemens to HGH and steroids, issues about chain of custody and McNamee's veracity in recounting why he held on to such materials don't make this anything like a smoking gun, or even one a little bit warm.

Could McNamee face perjury charges?  He is a linchpin of the Mitchell Report, so it would hardly be a ringing endorsement of the information it contains if a key witness was charged for lying to Congress.  McNamee admitted that his memory is faulty, but he certainly provided enough truthful information, confirmed by Pettitte and former Yankee second baseman Chuck Knoblauch, that you would not want to build the case around Clemens any more than you would make McNamee the star witness.

In math, when two negative numbers are multiplied, the product is a positive number, although I've never been sure why.  In an investigation of possible perjury, when two less-than-reliable witnesses make statements such that one must necessarily be false, it is nearly impossible to bring a charge against either when the other will be the key witness.  The Congressional circus is probably over, and while the Justice Department might be asked to take a look, I doubt it will go much further.  So the issue of Clemens' truthfulness will be left to the court of public opinion.  (ph)

Congress, Investigations | Permalink

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