Why the Roger Clemens Perjury Trial Is Good for America

By Andrew Cohen

The iconic pitcher has been charged with lying to Congress, and the U.S. government should take those accusations seriously

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Reuters


It's easy to lump the federal government's case against legendary pitcher Roger Clemens together with its just-completed case against legendary slugger Barry Bonds and its ongoing investigation of legendary cyclist Lance Armstrong. All three men are world-famous athletes. All three are in varying degrees of trouble for their statements (or lack thereof) about performance-enhancing drugs. And all three thus have afforded law enforcement officials with the useful opportunity to at least try to remind the rest of us that there are, often, very bad consequences for failing to level with authorities when they ask pertinent questions about potential criminal activity (see, e.g., Stewart, Martha).

The Ideas ReportBut United States v. Clemens is not merely the middle act in a modern morality play about public lying among the rich and famous. It warrants its own billing and deserves whatever legacy or precedent it creates. The government's case against Clemens, which begins with jury selection Wednesday at the E. Barrett Prettyman Federal Courthouse in Washington, D.C., is very different in law and fact than was the federal case against Bonds or is the federal probe of Armstrong. Clemens is charged with lying to Congress, not to a grand jury. And the case against Clemens--perjury and obstruction of justice--is far less complicated than is the one the feds are said to be contemplating against Armstrong. Each man may be hurting. But it's not the same headache.

Prosecutors say that Clemens, known as the "Rocket" when he was an All-Star pitcher, lied to members of the House Committee on Oversight and Government on February 13, 2008 when he denied using performance-enhancing drugs. You can watch the video from Capitol Hill here and judge for yourself.

It is the very touchstone of the case--and it will make a jarring exhibit at trial. I remember watching that hearing live--there was a great deal of coverage of it, of course--and remember thinking in real time how poorly Clemens came off. How jurors view it will probably be the single biggest factor in deciding whether the seven-time Cy Young Award winner will go to prison.

Prosecutors will try to use it to convince jurors that Clemens violated both the letter and the spirit of the law. The federal "false statements" statute makes it a crime to make a "materially false, fictitious, or fradulent statement or representation." The federal perjury statute, as construed by the United States Supreme Court in 1993 in US v. Dunnigan, says that "a witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory."

To accomplish this, the feds have much more evidence and thus many more options than they did in the Bonds case. Former baseball players are expected to testify, in one form or another, against Clemens. Even Andy Petitte, the stalwart New York Yankees' pitcher, the Dr. Jekyll to Clemens' Mr Hyde, is expected to testify against his dear old friend. The idea is to compound the testimony, one witness after other, so that prosecutors can turn to jurors in closing argument and say: "You have to make a choice. Either all these people are lying. Or Roger Clemens is."

But the main witness is a man named Brian McNamee, Clemens' former trainer, who says he injected Clemens (and other players) with steroids and human growth hormones in order to enhance their performance. McNamee is the hub of the wheel here. He ties together major portions of (what we now know to be) the government's case. If the jury discounts his testimony, Clemens has a decent shot at being acquitted. But if the jury believes McNamee, Clemens is toast, and everyone knows it.

And if McNamee were himself an untarnished witness the case likely long ago would have settled out with a plea deal favorable to the government. But of course McNamee himself is no day at the beach. For years he lied about his involvement in baseball's steroid scandal--he even wrote an op-ed piece in the New York Times about it--before suddenly reversing course and coming clean. Prosecutors will tell jurors that McNamee finally saw the light when he was confronted with potential prosecution. The defense attorneys will tell the jury that McNamee is the liar here--that he is telling the feds what he thinks they want to hear--and they'll actually get to use that classic lawyer line: "We you lying then, Mr. McNamee, or are you lying now?"

Clemens's legal team, led by the venerable Texas lawyer Rusty Hardin, has tried obsessively to turn United States v. Clemens into Clemens v. McNamee into a referendum upon the reliability of a confessed drug dealer. It's what defense attorneys do all the time in case involving witnesses like McNamee. And, indeed, for long stretches in court in the hot summer weeks to come you can bet that it will seem as though McNamee, not Clemens, is on trial. It will take a great deal of the considerable skill and experience of the trial judge, U.S. District Judge Reggie Walton, to ensure that Clemens' gets a fair trial without allowing defense attorneys to turn McNamee into the second coming of Charles Manson. Good luck with that, judge.

There are a few intangibles which also make this trial an interesting one--and different from the Bonds case or the Armstrong investigation. First, Clemens is in the dock in Washington, D.C. and not in his home state of Texas. The "jury of his peers" in the nation's capital may look and think quite differently from the "jury of his peers" who might have been collected in Houston, where Clemens lives, or even in New York, where he last played professional baseball. And while I'm not of the school that believes that "Homespun Hardin" will be outmatched by his Justice Department counterparts--that chatter is East Coast bias if there was any--I'm not altogether certain that Hardin's schtick will play well with jurors, either.  

When the indictment against Clemens was handed down, I criticized the Justice Department for choosing to prosecute the baseball star when so many other men and women come to Capitol Hill and publicly dissemble before Congress. Why Clemens and not former Attorney General Alberto Gonzales, for example, whose 2007 testimony before the Senate Judiciary Committee about the U.S. Attorney scandal was, well, scandalous? But I have since changed my mind and my perceptions about the value of perjury and obstruction of justice cases. I have come to believe, like many others who closely follow the legal system, that the government has a compelling interest in pursuing cases like this--no matter what the results at trial.

No one forced Clemens to talk to Congress that day. He could have exercised his Fifth Amendment right against self-incrimination--just like Mark McGwire did--and refused to answer any questions. Then he could have slinked off into the sunset--just like McGwire did--to be resurrected by the baseball fraternity, if nothing else, at some future date. But Clemens chose to speak--and to contradict much of the narrative offered by others. He chose to do so for his own strategic and tactical reasons. And he should be held to account. Words matter--especially under oath. Actions have consequences--especially under oath. This trial will outline for us what the contours of those consequences are for Clemens. I have no problem with any of that.  

In his new book Tangled Webs--How False Statements are Undermining America, the novelist and journalist James B. Stewart wrote in great detail about the ways in which some of America's most famous and powerful people--Martha Stewart, I. Lewis "Scooter" Libby, Barry Bonds, etc.--have gotten in trouble recently for testifying falsely about material issues. The Pulitzer-Prize winning reporter concludes that these lies infect much of what we hold dear about modern life: 

Perjury clearly poses a threat to the judicial system and the administrative of justice. But the importance of truth-- and the risks posed by perjury--transcend even an institution as vital as the judicial system... False statements have a direct, immediate, and often devastating impact, not only on those who make them but on those closets to them, their friends and families; on their colleagues, allies, and supporters; on all who rely on their word; on the ideals of fair play, integrity, and trust to which people of goodwill everywhere aspire; and ultimately to the very moral fabric of the society in which we live.

It may not seem like it when McNamee is on the witness stand, and the lawyers are talking about one sordid thing after another, but this is what's at stake in United States v. Clemens, no matter whether this contest ends in a conviction, an acquittal or something in between. So bring it on--and let's stop whining about how prosecutors have chosen to spend their summer.

This article available online at:

http://www.theatlantic.com/entertainment/archive/2011/07/why-the-roger-clemens-perjury-trial-is-good-for-america/241382/