Pete Winn | Senior Staff Writer | Thursday, February 28, 2008
"Roger always knew this day would come, that if you testified to Congress and denied what was said about you in the Mitchell report, there was no question that they will refer you to the Justice Department," he added.
The Mitchell Report was the culmination of a 20-month investigation into drug use in Major League Baseball conducted by former Sen. George Mitchell (D-Maine), at the behest of baseball Commissioner Bud Selig. It was released last December and presented to Congress in January.
The House Oversight and Government Reform Committee Wednesday asked the Justice Department to investigate whether the baseball superstar had committed perjury before the committee when he denied taking performance-enhancing drugs.
"We believe that his testimony in a sworn deposition on Feb. 5, 2008, and at a hearing on Feb. 13, 2008, that he never used anabolic steroids or human growth hormone, warrants further investigation," the committee wrote in a letter to Attorney General Michael Mukasey.
Chairman Henry Waxman (D-Calif.) and ranking Republican Tom Davis (R-Va.) said the future Hall of Fame pitchers' testimony is "directly contradicted" by the sworn testimony of his former trainer, Brian McNamee, "who testified that he personally injected Clemens with anabolic steroids and human growth hormone (HGH)."
The congressmen said further: "Mr. Clemens' 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."
Brian McNichol, a spokesman for Davis, told Cybercast News Service that House Oversight Committee attorneys have been "poring over" the transcripts of the recent hearings and the depositions taken in the case over the last two weeks - not just the testimony from Clemens and his accuser, McNamee, but also depositions from Pettitte and another major leaguer, Chuck Knoblauch.
The move would appear on the surface to vindicate McNamee, who repeated to Congress the claims he made to Mitchell's task force on steroids - that he had injected Clemens with human growth hormone (HGH) more than seven years ago.
Waxman and Davis want the government to probe what they say are troubling inconsistencies:
-- McNamee testified that he had given HGH or steroids to Pettitte, Knoblauch and Clemens.
-- Both Pettitte and Knoblauch later admitted to the committee's investigators that McNamee had given the injections.
-- In his deposition, Pettitte told the Oversight Committee's investigators he had talked with Clemens about HGH.
"In 1999 or 2000," Pettitte told the committee's investigators, "I had a conversation with Roger Clemens in which Roger told me he had taken human growth hormone. This conversation occurred at his gym in Memorial, Texas. He did not tell me when he got the HGH or from whom, but he did tell me that it helped the body recover. I told my wife Laura about the conversation with Roger soon after it happened."
Pettitte also said that in 2005, around the time of the first congressional hearing into the use of performance-enhancing drugs in baseball, he had another conversation with Clemens about the drug, this time in Kissimmee, Fla.
"I asked him what he would say if asked by reporters if he ever used performance-enhancing drugs," Pettitte said in his deposition. "When he asked what I meant, I reminded him that he told me that he had used HGH. Roger responded by telling me that I must have misunderstood him. He claimed that it was his wife Debbie who used HGH."
Clemens, however, specifically denied that he had ever told Pettitte he had taken performance-enhancers.
"I have not. I have not talked to Andy about growth hormones or steroids," Clemens said in his deposition.
Then during the Feb, 13 congressional hearing, when Rep. Elijah Cummings (D-Md.) directly asked Clemens if Pettitte was lying, the Houston Astros hurler said: "Mr. Congressman, Andy Pettitte is my friend. He will - he was my friend before this. He will be my friend after this. And again, I think Andy has misheard."
"The conversation that I can recall, that I had with Andy Pettitte, was at my house in Houston, while we were working out," said Clemens. "And I had expressed to him about a TV show something that I had heard about three older men that were using HGH and getting back their quality of life from that. Those are the conversations that I can remember."
'The keystone that causes the entire thing to fall apart'
Mike Florio, an attorney who comments on sports topics for The Sporting News, said the key to Clemens' story - and possible defense - is Pettitte.
"To the extent that Andy Pettitte can persuasively convey to others that Roger Clemens told him that he did HGH, that's the thing that can be used to directly rebut Clemens' insistence that he didn't do it," Florio told Cybercast News Service.
One of the key questions that investigators must resolve is whether Clemens was at a party in 1998 in Florida hosted by his former teammate Jose Canseco - one at which McNamee said he discussed steroids with Clemens.
Canseco and Clemens both swear that Clemens was not in attendance at the barbecue, but committee attorneys interviewed Clemens' former nanny who remembers being there with Clemens, his wife and their children. And reports have recently surfaced that a young sports fan may have snapped a photo of Clemens going into the Canseco home.
"If he's lying about not even attending that party, then what else is he lying about?" Florio asked. "If we can't trust him on that, where Brian McNamee said there was a conversation about HGH use - if Clemens just says, 'I wasn't there' when there is evidence that he was - that's the kind of thing that can be the keystone that causes the entire thing to fall apart."
Still, not everyone agrees that the committee should be so quick to make a recommendation for prosecution.
Alan C. Milstein, a nationally recognized expert in sports law and bioethics who has followed the steroids hearings closely, told Cybercast News Service that it's not clear from the testimony who is lying, and it may not be for some time. Inconsistencies in statements do not necessarily amount to perjury.
"I don't think from what we've heard so far that we know who is telling the truth and who's not," Milstein said.
Willamette University Law professor Jeffrey Standen agreed but said the committee's attorneys may have the inside scoop.
"They probably know more than we do," Standen told Cybercast News Service. "If the committee is willing to make some kind of referral to the Justice Department, we don't have to trust that as being conclusive, but it does tell us who they believe."
In any event, the Justice Department doesn't need a referral from Congress.
"The Justice Department can investigate whom they please," Standen said.
"But in my experience, a letter from Congress certainly goes to the top of the pile. You can ignore it, but you do so at your peril. I suspect pretty strongly, that ... there will at least be some kind of investigation. Whether that amounts to a perjury indictment, of course, amounts to an entirely different matter," he said.
There are indications, however, that the Justice Department may already be probing Clemens.
McNamee has provided federal authorities with evidence he said corroborates his story: syringes, vials and gauze pads that he said he used to inject performance-enhancing drugs in the player's buttocks.
Federal investigators have reportedly sent the seven-year-old medical waste to a laboratory for testing and are still waiting for the results.
Milstein said we don't know yet whether the evidence can be tied to Clemens, and it's highly questionable whether it would ever stand up in court. But the evidence could play a role similar to the one Monica Lewinsky's semen-stained blue dress played in the Clinton scandal of the 1990s - the "smoking gun" that proves the allegations.
"It certainly could be the 'blue dress,'" Milstein said.
"The peculiar thing about those items, though, is why in the world would he keep all those - and only of Clemens - all these years? Even more suspicious, he was approached by the feds, and approached by (Sen. George) Mitchell and asked what evidence he had - and these are conversations that he was supposed to be completely forthcoming in, he was supposed to be completely honest, subject to (indictment) by the feds - and yet McNamee didn't say anything about it until supposedly he got annoyed when Clemens brought up his sick son at a press conference," he said.
"To me, it's a very odd state of affairs with respect to the items that he supposedly kept," Milstein added.
In the end, however, it will be up to investigators to probe - and prove or disprove - all allegations, not Congress.
"Lies belie reality," Standen said. "If you investigate the reality, you will find discrepancies, and little lies lead to big lies. That's how it works."
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