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Burden of Proof (cont.)

Posted: Thursday February 7, 2008 3:31PM; Updated: Thursday February 7, 2008 3:48PM
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4) If Clemens lied to Congress yesterday, what kind of trouble would he be in?

He would probably be in a lot of trouble. Under oath, Clemens told the House Committee on Oversight and Government Reform that he never used steroids or HGH. If he lied, the committee could allow him the opportunity to amend or "correct" his testimony on grounds that the investigation is on-going. It would most likely do so if Clemens immediately and meekly sought the committee's forgiveness. Clemens is said to be meeting privately today with two committee members, Congressmen Tom Davis and Elijah Cummings. Those meetings may provide him with an invaluable opportunity to revisit or clarify his comments from yesterday.


More likely, though, the committee would seek to punish Clemens for lying, and that relates to an important contextual point: consider the seriousness of sitting before members of Congress and audaciously lying to them. To do so would denigrate not only those members of Congress, but those whom they represent: us. In that same vein, to lie while being interviewed on 60 Minutes or during a press conference warrants shame; to do so while testifying in the hallowed chambers of Congress warrants total rebuke.

If Congress ultimately pursues charges against Clemens for lying, he would face serious felony charges, including perjury, obstruction of justice, and lying to government officials. If convicted of those charges, he would face the prospect of prison time.

Perjury is to knowingly lie under oath and typically about a matter material to an investigation or case. A common defense to perjury is to claim that one misunderstood the question or the context in which it was asked, though such a defense would seem inapplicable to Clemens, who clearly understood questions about whether he used steroids or HGH.

Obstruction of justice, in contrast, refers to when a person knowingly tries to impair a proceeding in any material and unacceptable way, such as lying about a material matter under oath. Similarly, lying to government officials and investigators, a crime found in Title 18 of the U.S. Code (Section 1001), refers to when a person lies about a matter within the jurisdiction of the executive, legislative, or judicial branch of the federal government. Section 1001 recently attracted attention when Congressmen Henry Waxman and Tom Davis asked the Justice Department to investigate whether Miguel Tejada lied to their committee staff. If ultimately charged, Tejada would likely face charges stemming from Section 1001.

It should be noted that any felony charge against Clemens would require the government to prove, beyond a reasonable doubt, that Clemens knowingly lied. Such a threshold is extremely high, especially when one has the financial and legal resources to engender doubt in a criminal trial.

Also keep in mind this question is premised on the idea that Clemens, in fact, lied. He may very be telling truth and McNamee may be lying. Along those lines, and as explained above, even evidence that conclusively shows Clemens' DNA matches a steroids- or HGH-laden syringe, viral, or gauze could be borne from tampering or mishandling, rather than from Clemens actually or knowingly having used steroids or HGH.

5) What should Congress do?

It appears the House Committee on Oversight and Government Reform was unaware of McNamee's physical evidence until yesterday. To the extent the committee seeks to determine the veracity of Clemens and McNamee, it may be sensible for the committee to postpone next week's hearing indefinitely and wait for laboratory results of the evidence, assuming a verifiable comparison with Clemens' DNA can be made. After-all, without any physical evidence, next week's hearing may amount to nothing more than impassioned and contradictory story-telling by Clemens and McNamee, buttressed by the equally unverifiable testimony of Andy Pettitte, Chuck Knoblauch, and Kirk Radomski. Though it would undoubtedly make for compelling TV, such a show may not prove a sensible use of the limited time and budget of Congress, particularly given the newfound existence of potentially conclusive physical evidence.

Then again, the committee's stated purpose in conducting this investigation is far grander than the possible use of steroids and HGH by Clemens or that of the other players scheduled to testify. It is about examining whether federal laws were violated and whether the failure of Major League Baseball and the Major League Baseball Players' Association to curb the use of illegal performance-enhancing drugs has unintentionally made young athletes more prone to using those drugs. Determining whether Clemens actually used those drugs is not necessarily crucial to that purpose, and simply asking questions of those scheduled to testify could be prove beneficial.

That general purpose, however, may warrant delay for another reason: Last week, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit held in USA v. Comprehensive Drug Testing, Inc. that government authorities can use the names and urine samples of 104 players who tested positive for performance-enhancers in 2003. It is unclear which players are impacted by this evidence, and there may be another appeal heard by the same court in the near future, but it may be prudent to wait and assess the evidence's potential relevance before continuing with a Congressional investigation.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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