Federal prosecutors want to convict someone—anyone—for using performance-enhancing drugs.
If you're puzzled as to what the ongoing soap opera of the Federal Government vs. Rogers Clemens is all about, try thinking of it this way: So far federal prosecutors have spent more than $120 million of your hard-earned tax money—and the meter is still ticking—in an effort to nail at least one major league baseball star for using performance-enhancing drugs.
They didn't exactly strike out on Barry Bonds, but for Bonds' conviction—for obstructing justice by giving an evasive answer under oath, the only one of four counts he was convicted of—the sentence was 30 days house arrest and two yearsprobation. If that's not a strike out, it's certainly no better than an infield pop-up.
Getting Clemens is the feds' last shot, and after all the huffing and puffing and finger-pointing, it's going to come down to exactly what it was from the start: Roger Clemens' word versus that of his longtime strength and conditioning trainer, Brian McNamee. This is Clemens' second perjury trial for lying to Congress under oath during the 2008 hearings by the House Oversight and Government Reform Committee's investigation into drug use in baseball; the first trial was declared a mistrial last summer on a prosecutorial error.
The jury will either believe Clemens or McNamee, who has testified he provided human growth hormones to three other MLB players and put one in touch with drug dealer Kirk Radomski. McNamee has even produced used syringes and cotton balls thatwere stored in a beer can in a FedEx box for years, which he claims he used to inject Clemens with HGH. But McNamee'sestranged wife, who testified Wednesday, creditably contradicted his testimony in nearly every way, according to ESPN's legal analyst Lester Munson, even mentioning that she saw a Bud Light can with syringes, not Miller Lite, as McNamee had specified.
Oh, and lest we forget, back in 2000 McNamee denied, in a letter to the New York Times, that he had ever seen Clemens take PEDs. What jogged his memory? Maybe the possibility of doing prison time for drug dealing.
What of the possible testimony of former pitcher C.J. Nitkowski? C.J. claims toremember a workout session where Yankees pitcher Andy Pettitte told him that Clemens had told Pettitte that he used human growth hormones. But Nitkowski never saw Clemens using any banned substance or actually heard Clemens admitting to such, so it would seem Nitkowski proves useless to the prosecution.
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What about Jose Canseco, former major league slugger, admitted steroid user, and best-selling author? Prosecutors have tried to establish a link between Clemens and Canseco by placing Clemens at Canseco's house during a party where drugs were supposedly used. Clemens says he does not remember being at the party; Canseco says he does not remember Clemens being there. Prosecutors have hinted they have witnesses who can place Clemens at the party. So what? Who cares who was at the party if no one saw Clemens using banned substances?
What, then, of Andy Pettitte? For years now Pettitte has been built up by writers who followed the case as the prosecution's big gun, the only first-hand witness besides McNamee. In fact, Pettitte never claimed to be any such thing, and when he testified in early May, he essentially repeated what he had told the committee four years ago. During the 2008 hearings he testified in a sworn affidavit that Clemens told him about his wife using human growth hormones, but his statements were found to be confusing, and the committee decided not to call him as a witness.
So, why has the government persisted in its attempt to convict Clemens?
Let's backtrack to the late 1990s, when home run totals were exploding in both leagues and old long-standing records were either obliterated or under assault. Egged on by the sports press, fans began to pepper their Congressmen with complaints about the proliferation of steroids and other PEDs in baseball at both the pro and amateur levels, including high schools.
The first response of baseball commissioner Bud Selig to complaints from Congress was one of almost ridiculous arrogance. After stalling for years on requests for an investigation into drug use in the major leagues, in 2005 Seligsent the Congressional Committee a letter telling them they had no jurisdiction in the matter. The hearings, Selig informed them, were "an absolutely excessive and unprecedented misuse of Congressional power."
Perhaps it was years of being called the "czar" of baseball, but whatever inflated Selig's sense of his own power, he was delusional. Several Congressmen went public about the possibility of stripping baseball of its exemption from antitrust laws, which it had enjoyed since 1922. Selig quickly got the message and determined to show that baseball could indeed clean its own house; he tapped his good friend former Senator George Mitchell (D- Maine) to conduct MLB's investigation. On December 13, 2007, Mitchell's 400-plus page report named 89 players who had allegedly used PEDs, Roger Clemens among them.
Mitchell's report, though, offered no hard evidence of drug use for most of the players named. The first real proof came out of a 2003 agreement between MLB and the players union to anonymously test every player in the game so that the extent of drug use could be determined.
But on April 8, 2004, six days after testing was completed, federal agents confiscated the samples from a Las Vegas lab and records of the test results from a company in Long Beach, California. Both the Commissioner's office and the union vehemently objected. The agents' warrant was for only ten samples related to their investigation into the BALCO steroids lab in building their case against Barry Bonds, and they had no authority to take the samples of all 104 players who had tested positive. It took more than five years of legal squabbling for the union to get the samples back.On August 26, 2009, the Ninth U.S. Circuit Court of Appeals ruled 9-2 that the agents had violated the players' civil liberties and ordered the samples returned, which, after another appeal was denied, they were. The samples were promptly destroyed.
But it was too late for some well-known players. The feds broke the ID code on the "blind" samples and were able to put names to the samples. In February, 2009, as the courts debated the status of the confiscated test samples, the names of Alex Rodriguez, Manny Ramirez, and David Ortiz were leaked to the New York Times and Sports Illustrated. Who dropped their names?
Well, only three parties had access to the information. The first two were MLB and the union, both of whom would have violated federal labor laws if they had revealed the identity of any player who tested positive. A logical conclusion, then, is that the players' names were leaked by the ones whobenefitted most from it, the federal investigators who were trying to keep their case alive.
Do we know if Roger Clemenswasone of the 104 who tested positive? No, we don't. But the fact that his name was not leaked is a strong indication that he did not test positive.
In 2008, before the House Oversight and Government Reform Committee, Clemens adamantly declared his own innocence. The question should have been why a Congressional committee was still needed when baseball, by then,had instituted a perfectly workable system for drug testing. Why did Congress or anyone still care about alleged drug use by Roger Clemens or any other player that had happened years before?
There was no criminality attached to HGH, the substance Clemens is accused of using, and at the time McNamee claims to Clemens used it--in 1998, 2000, and 2001--it wasn't yet prohibited by the Basic Agreement between the teams and the players. For that matter, there isn't even any indication that Clemens' performance was enhanced over that period; several researchers (most notably David Ezra, author of Asterisk: Home Runs, Steroids, and the Rush to Judgment and J.C,. Bradbury, author of The Baseball Economist—The Real Game Exposed) have found absolutely no statistical evidence that even if Clemens used HGH, in no way did his performance get a "boost." .
Why, then, does Congress still care? The Clemens trial has now taken on the overtones of a vendetta. Clemens angered the Committee by standing up publicly and declaring his innocence. Unable to indict him for illegal drug use, they decided to go after him for perjuryabout drug use.
What are the chances of a conviction? No one really knows. The prosecution rested on May 29, and unless they still have something bigger up their sleeve than Brian McNamee's word or a bunch of old syringes stored for years in a beer can—regardless of the brand—it seems likely that Barry Bonds' house arrest is all the federal government will have to show for our $120 million.
This post originally stated that Andy Pettitte was not called to testify in Clemens's trial. Pettitte did testify, on May 2nd and 3rd, 2012. We regret the error.