Congress Refers Clemens Matter to the Justice Department for Criminal Investigation

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.

For the full story, click here.

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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15 thoughts on “Congress Refers Clemens Matter to the Justice Department for Criminal Investigation”

  1. Deeply Worried:
    I’m amazed and disappointed that no one noticed me, DW, cultural elitist snob, capitulating to the mass culture and actually quoting from the Simpsons! And in the same night I quoted from Montaigne. Strange bedfellows those two!

    Deeply, the LAST kind of person I’d take you for is an elitist snob. lol But I will thank you for that wonderful quote from The Simpsons, which I had NOT been aware of. On Montaigne, I have to confess to complete previous ignorance of. My comedy tastes tend to generally support the likes of Abbott & Costello, Laurel & Hardy, et al. You have broadened my horizons, Sir. My deepest thanks. And a very happy Friday to you as well. 🙂

  2. And there’s this:

    USA A-OK,” the award-winning speech by Trong Van Din:
    When my family arrived in this country four months ago, we spoke no English and had no money in our pockets. Today, we own a nationwide chain of wheel-balancing centers. Where else but in America, or possibly Canada, could our family find such opportunity? That’s why, whenever I see the Stars and Stripes, I will always be reminded of that wonderful word: flag!

    the source:

    Happy Friday, Susan!

  3. I’m amazed and disappointed that no one noticed me, DW, cultural elitist snob, capitulating to the mass culture and actually quoting from the Simpsons! And in the same night I quoted from Montaigne. Strange bedfellows those two!

  4. I know, Deeply, and I can’t thank JT enough for his tireless efforts to provide all of his excellent information, share his wisdom, and give us a good laugh when we need it. I’m not unappreciative, in fact I’m very grateful this blog is here.

    That being said, I still wish to see more politicians being cross-examined, if you will, on the air on critical issues, such as the refusal of our politicians to address what is torture. “How would such a ‘cross-examination’ go, you might wonder. Well, I had one or two ideas, and I’m more than happy to share them here. Remember, I’m just the writer, NOT the lawyer, so I’m not “practicing law.” But since I’m a writer, I can write a possible script, can’t I, JT? 🙂

    Here’s my idea:

    “Cross-Examination” of Stubborn Politicians

    1. Interviewer: Senator/Attorney General, you have so far refused to state that waterboarding is torture, isn’t that true?
    (Viewers watch politician squirm, trying to avoid answering yes or no)

    2. Interviewer (casually): It’s a simple yes or no answer, [politician], isn’t that correct?
    (Viewers see politician sqirming harder, still desperately trying to avoid answering directly)

    3. Interviewer: All right, I can see you’re not going to answer to answer my question, so let’s move on. You and your panel have so far failed to open a criminal investigation against those who have either INFLICTED torture or ORDERED that torture to be inflicted, isn’t THAT true?
    (Viewers watch politician struggle with this new, even tougher question. He has still failed to answer yes or no on either of the two questions previously posed)

    4. Interviewer (sighing): I guess you’re not going to answer this question either, isn’t that right? Okay, we’ll go on, and see if my next question will be a little easier for you.
    (Viewers carefully watch politician to see if he relaxes)

    5. Interviewer: Given that neither you nor anyone else in charge over there, that being the Justice Department, has opened any kind of criminal investigation into the torturous practice of waterboarding on detainees, a reasonable person could easily conclude that you SUPPORT torture in any form it is applied, isn’t that correct? In fact, wouldn’t the term PRO-TORTURE be an accurate way to describe your failure to act on this matter?
    (Viewers watch politician start to protest or accuse the interviewer at this point, still avoiding answering the question directly)

    6. Interviewer: Well, [politician], you know the old saying, don’t you? You know, the one that goes “if the shoe fits….?”

    (Viewers watch as the verbal fireworks begin to get intense)

    Hmmmm…think that one will fly? 🙂

  5. Susan, Don’t dispair, things actually revolve around an epicenter and the orbit is elliptical rather than circular. Right now, we are kind of away from the focal point of logic and morality as a society, but the tug is irresistable and we are winging our way back in to the center again. Go Democrats! So just wait a bit, there is so much to be hopeful about!

    JT provides a service for us all. The humor of the posts is not unintentional..he is reminding us in his own way of how our human society is a strange mix of high seriousness and low comedy. And sometimes both at the same time! Hence the Simpsons:

    “Can you name the truck with four wheel drive,
    Smells like a steak, and seats thirty five?
    Canyonero! Canyonero!
    Well, it goes real slow with the hammer down
    It’s the country-fried truck endorsed by a clown
    Canyonero! Canyonero!
    Hey, hey!
    Twelve yards long, two lanes wide,
    Sixty five tons of American pride!
    Canyonero! Canyonero!
    Top of the line in utility sports,
    Unexplained fires are a matter for the courts!
    Canyonero! Canyonero!
    She blinds everybody with her super high beams
    She’s a squirrel-squashin’, deer-smackin’ drivin’ machine
    Canyonero! Canyonero! Canyonero!
    Whoa, Canyonero! Whoa!”

    This makes even a over-serious bloke like me smile!

  6. No, Deeply, we certainly do NOT. It is now those at the top levels of our government who SUPPORT this violent crime of torture, and worse APPLY it, and others who should be going after them for inflicting grievous bodily injury on people are refusing to do so. I really don’t get it!

    I know I made a bad joke earlier, when this is really no laughing matter, for which I now humbly apologize, but I have to wonder whether those who have so far refused to open criminal investigations against such people would do so if the pro-torture label were to be continually applied to them in the media. If nothing else seems to work to light a metaphorical fire under these people to DO THEIR JOBS, maybe more bad press will. Just a thought, but probably another useless one. I REALLY despair at times, and this is one of them.

  7. Good for you Susan!! Stole the words right out of my mouth! I would rather that they sent a letter to Mukasey requesting an investigation into whether Mukasey himself gave false information to Congress!

    Oh, to be able to read the history books 300 years from now (assuming there is still something as quaint as a print media).

    The noble Republic, brave experiment in high aspirations and constitutional safeguards.

    Their Congress’s response to the perversion of the national character by official brutality?

    Ignore it and investigate a minor character who played some obscure game with a cowhide sphere, hit with pieces of trees.

    Look, when our Atlantic cousins were enjoying their empire in the 1850-1890’s and having all their little wars on the far-flung frontiers of the red-mapped globe; at least there was a tension between the jingoists and the moralists. At least the governments swapped between the Disraeli’s and the Gladstone’s.

    Now that it is our turn, we don’t have the same dynamic. It’s take me out to the ballgame, and the devil with the battles on the frontiers of our new empire and the growing repression at home.

  8. JonathanTurley:
    Indeed. What will be interesting is that the Justice Department is almost certain to take this case. Yet on Meirs and company it is refusing to prosecute. In the contempt case, the Justice Department is refusing to allow a jury to decide the matter despite any formal referral from Congress.

    The Justice Department will “throw the book” at Clemens for hurting NO ONE, and yet refuse to even consider prosecution for the obviously violent crime of torture, which causes serious bodily injury to everyone torture is inflicted on. As Deeply (I think) said recently of another topic raised here, “words fail me.”

  9. More fine lawyering by Rusty Hardin and his gang of incompetents. Trusting your client to be totally honest, when he has everything to lose was his first mistake. Calling out former Senate Majority Leader Mitchell was whiff two. And finally letting Roger stride confidently out on that limb with the IRS and the FBI holding chain saws was strike three. Clemens’ next jersey number might have a lot more than two digits.

  10. Thanks, my ignorance is evident.

    In the former cases, does the civil contempt mean that a grand jury can be convened, and if so, who convenes it? Why choose civil over criminal contempt–is it to sidestep a blocking tactic that would otherwise be available to Bush/Mukasey?

    No reply necessary if you’re busy. Someone here will know!

  11. Deeply worried:

    If you are referring to the Bush officials, no. This is a federal contempt sanction.

    If you are referring to Clemens, he is also being investigated not for steroid use but false statements. Steroid use is illegal in some states but notoriously difficult to prove and the statute of limitations has run.

  12. Indeed. What will be interesting is that the Justice Department is almost certain to take this case. Yet on Meirs and company it is refusing to prosecute. In the contempt case, the Justice Department is refusing to allow a jury to decide the matter despite any formal referral from Congress.

  13. Full federal investigation for Clemens but not for Gonzalez or Addington or Bradbury or Haynes or Mukasey?

    We’re told Clemens is worth the trouble because he is a model for young American children and would be a bad example if unprosecuted.

    Well isn’t advocating, commissioning, or covering up torture a bad example too!?!?


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