Answering key questions as Round 2 begins in D.C.
Posted: Tuesday January 29, 2008 12:19PM; Updated: Tuesday January 29, 2008 1:12PM
With Chuck Knoblauch having agreed to meet with the congressional Committee on Oversight and Government Reform, the full batting order is set for the Feb. 13 congressional hearing. On Wednesday, Andy Pettitte will meet privately with committee staff members, with Roger Clemens, Brian McNamee, Knoblauch and Kirk Radomski heading to Washington D.C. in the following days.
And then comes the main event.
The last time that baseball players appeared before the committee was in 2005, and "we couldn't write drama like that," said one congressman who recalled Mark McGwire repeatedly refusing to talk about the past, Sammy Sosa using an interpreter and Rafael Palmeiro wagging his I-didn't-do-it finger at legislators, only to fail a drug test months later. (Note to future witnesses: keep fingers in pockets; your elected officials haven't forgotten about Palmeiro's theatrics). Will Feb. 13 provide another performance for the ages? We'll have to wait and see. That's just one of the many questions about the hearing.
Why is Congress bothering with another hearing?
According to committee members the Feb. 13 hearing will serve two important functions (beyond providing dramatic headlines): First, Congress is hoping for insight into player/trainer/clubhouse employee relationships. "I can't remember a lot being said in the Mitchell Report about how trainers operate," says Rep. Elijah Cummings (D-MD), who wants to hear more on that topic from McNamee. "I wonder what the code of ethics is for these trainers, and if we need to put a greater spotlight on them." Second, some members insist that evaluating the truthfulness of Clemens and McNamee will bear on the credibility of the Mitchell Report as a whole. The Mitchell Report "does little good if we are not confident in the honesty of his main sources," says Rep. Tom Davis (R-VA), the committee's ranking minority member. "The February hearing will examine the claim that the evidence relating to Roger Clemens is false. Reaffirming the evidence in the Mitchell Report will give the public greater confidence in the conclusions."
What happens if Clemens or McNamee lies?
Congress has sent a message that lying to reporters is a simpler affair than fibbing on the Hill. The Jan. 15 hearing, which featured Bud Selig and Donald Fehr, opened with the announcement that Astros shortstop Miguel Tejada would be investigated for making false statements to congressional investigators. Says Cummings, "considering the precedent that has been set with regard to Tejada, and knowing the committee like I think I do, I think that if [the committee] finds a situation similar to what is suspected in the Tejada case, that [Clemens or McNamee] will find themselves referred to the Justice Department."
All of the Feb. 13 witnesses have been asked to give statements to the committee prior to the hearing. The witnesses have the choice of submitting a sworn deposition or a transcribed interview. The difference is that a deposition would be given under oath, whereas an interview would not. However, it is a crime to lie to Congress, whether under oath or not, so the only practical difference is that an interview transcript could immediately be made public, while a deposition could only be made public by a vote of the committee or an agreement between the chairman and ranking minority member.
Why was McNamee asking for immunity if he plans to tell the truth before Congress?
Clemens' lawyer Rusty Hardin termed it a "delicious irony" that McNamee would call Clemens a liar and then ask for immunity himself. Really, though, there is no irony, because no immunity deal holds if a witness lies. According to his attorneys McNamee was asking for immunity because he wanted to tell the truth, and the truth includes the admission of crimes. McNamee "was getting steroids and HGH from Kirk Radomski," says his lawyer Earl Ward. "That's a crime, and I don't want him to come into Congress and admit to a crime and get prosecuted for it." As the hearing date nears, it appears less likely that McNamee will be granted immunity, but his lawyers do not expect that to greatly impact his testimony. "The things in the Mitchell Report," Ward says, "are beyond the statute of limitations." Ward says he does not expect McNamee to invoke his Fifth Amendment rights at the hearing.
Why wouldn't Congress give McNamee immunity?
Immunity is rarely granted. The last time the Committee on Oversight and Government Reform gave a witness immunity was in 2003, when testimony involved an ongoing criminal investigation. One reason that Congress might deny McNamee immunity is if the Justice Department has made it clear that it is still investigating McNamee. If McNamee were given an immunity deal the Justice Department could still prosecute him if it obtained information about his crimes independent of his testimony. As a general rule, though, it is very hard for a prosecutor to prove that information was not gleaned from immune statements if the testimony was given publicly, and the evidence is liable to be thrown out.