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Roger Clemens and Perjury Charges: A Legal View of the Case Against Him

Feb 28, 2008 – 12:35 PM
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Stephanie Stradley

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I have to say, I don't particularly believe Roger Clemens. You can debate various small details of testimony, but in general, it is difficult to believe that Clemens former trainer told the truth about everyone else, but lied as it related to Clemens.

That being said, I don't believe the referral letter (full text here) or the committee's supporting memorandum (full text here) from Congress to the Justice Department recommending Clemens be prosecuted for perjury makes for a particularly compelling case.

In his press conference yesterday, Clemens' lawyer, Rusty Hardin seems to expect the Justice Department to file charges. Basically, the standard on whether to file charges is fairly low, prosecutors just need to show to a grand jury probable cause that the crime has been committed. The possibility of perjury charges being brought against Clemens is something Hardin knew when making him available to testify, and what Clemens was advised.

However, even though Congress just sprung their perjury trap with the letter, it isn't good enough for the government at time of trial just to say that a witness' testimony is implausible. Peter J Henning, who has thoughtfully covered the Clemens matter in his White Collar Crime Prof Blog notes:
It was clear that either Clemens or his former trainer, Brian McNamee, was lying because they told diametrically opposed stories. But the question now is whether a federal prosecutor could prove Clemens committed perjury, a much more difficult task than just saying "I don't think he's telling the truth."

Henning summed this up well on an earlier entry made after the Clemens-McNamee hearings:
If prosecutors want to go after Clemens, they will be hard pressed to get a jury to believe McNamee, who effectively admitted that he does not handle the truth very well (e.g. "a partial lie"). Information provided by Clemens' former teammate Andy Pettitte about conversations they had concerning HGH use was not helpful, but it is hardly the type of clear contradiction needed for a perjury investigation, especially when one of the discussions took place nearly ten years ago. Clemens could not bring himself to call Pettitte a liar, but he did dispute his friend's memory of the conversations, throwing up enough dust to make it hard to figure exactly what was said.

The Committee also obtained an affidavit from Pettitte's wife confirming that he told her about a conversation with Clemens, but that is hearsay of the first order and would not be admissible at a criminal trial to prove what Clemens said. While the syringes and other items produced by McNamee could well link Clemens to HGH and steroids, issues about chain of custody and McNamee's veracity in recounting why he held on to such materials don't make this anything like a smoking gun, or even one a little bit warm.
The public perception is that Pettitte called Clemens a liar, and though Pettitte's affidavit was very straightforward, his deposition suggested the possibility he was mistaken.

As Michael McCann notes in his SI.com Sports and the Law column, it's difficult to demonstrate a perjury case beyond a reasonable doubt. He states, "the government would have to prove that he knowingly and unequivocally lied under oath about a material matter and in response to a clearly-worded question." McCann gives some examples of how potentially inconsistent parts of Clemens testimony, like conversations with McNamee about HGH can be explained away.

Besides, I heard the hearing testimony, and I'm not sure there was a clear question in the bunch.
What should be more concerning to Clemens is that though the evidence against him isn't particularly strong now, it's quite possible that through further investigation and fact finding eventually it could become stronger.

Most people don't pick fights with Congressional committees even if they completely believe what they are saying is true because there is little to gain and everything to lose, and it's too expensive to fight the government. Even though Clemens has piles of money, the government will always have more because they have yours. So everything that was discussed in Clemens deposition and hearing will be more extensively investigated by the FBI to try to support perjury charges.

Clemens' attorney seems resigned to the fact that the court of public opinion will never be in Clemens favor once the Mitchell Report bell was rung. Some suggest that as a matter of a balanced appearance, that a Clemens indictment may be inevitable given the federal PED perjury cases brought against black athletes (Barry Bonds, Marion Jones, Dana Stubblefield).

Personally, I have to say that though I might not believe Clemens, I don't particularly care to have more of my tax dollars spent on not a particularly good case just because It makes Congress look bad if no charges are brought.
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