Roger Clemens’ decision to testify before Congress without immunity was a considerable risk designed to protect his legacy. He may now lose both his legacy and his liberty. House Oversight and Government Reform Committee chairman Henry Waxman and ranking Republican Tom Davis sent a letter to Attorney General Michael Mukasey asking for a criminal investigation into whether Clemens gave false information to Congress in the investigation in to the use of performance enhancing drugs.
The decision to testify without immunity was always a risky business since Clemens and his lawyer knew that there were witnesses likely to contradict elements of his account — most importantly his former trainer Brian McNamee. At best, therefore, it would come down to a credibility contest — a rather precarious gamble for the pitcher. It appears that he lost in that credibility contest since Congress has only referred his testimony to Justice for possible criminal investigation.
In their letter, the members specifically reference a Feb. 5 sworn deposition and at a Feb. 13 public hearing where he said he “never used anabolic steroids or human growth hormone.” However, Clemens now stands contradicted with alleged physical evidence, here, and photographs, here, on elements of his testimony.
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The members clearly indicate that they believe McNamee and cite his testimony as the basis for their suspicion of perjury: “That testimony is directly contradicted by the sworn testimony of Brian McNamee, who testified that he personally injected Mr. Clemens with anabolic steroids and human growth hormone.”
They further note: “Mr. Clemens’s testimony is also contradicted by the sworn deposition testimony and affidavit submitted to the committee by Andrew Pettitte, a former teammate of Mr. Clemens, whose testimony and affidavit reported that Mr. Clemens had admitted to him in 1999 or 2000 that he had taken human growth hormone.”
Some lawyers have questioned the judgment of Rusty Hardin, his counsel, though it is not clear who is driving the high-risk strategy. After all, Bob Bennett faced the same disaster with Bill Clinton after his client assured him that he did not have any relations with Monica Lewinsky — only to face physical evidence contradicting his sworn testimony.
For his part, Hardin welcomed the change from Congress to the courts: “Now we are done with the circus of public opinion, and we are moving to the courtroom . . . Thankfully, we are now about to enter an arena where there are rules and people can be held properly accountable for outrageous statements.”
However, that arena will be preceded by a full federal investigation, which is hardly a cause for celebration. Any crime uncovered in the course of that investigation from taxes to obstruction to perjury could be charged. If Clemens had simply refused to testify, there would have been little Congress or the courts could do to him. That is the problem of protecting a legacy while risking liberty — you can end up losing both.
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