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Law and disorder

Answering questions from the wild legal saga

Posted: Tuesday February 12, 2008 2:20PM; Updated: Wednesday February 13, 2008 9:35AM
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Andy Pettitte
Andy Pettitte won't be appearing at Wednesday's hearing after all.
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1) Why would Andy Pettitte, Chuck Knoblauch and Kirk Radomski ask out of the hearing?

There are at least two possible reasons why Pettitte would ask out. The most likely is that he did not want to personally implicate Clemens with him sitting nearby. Another possibility is that Pettitte revealed to members of the House Oversight Committee new information relating to his steroids or HGH use and did not want to publicly disclose it in a highly watched Congressional hearing.

Knoblauch and Radomski may have asked out to avoid being part of the public spectacle of the hearings, to minimize opportunities for perjuring themselves, and to escape having to answer questions that could require them to disparage friends, former teammates or former clients while on national television. In addition, Radomski -- who will privately answer committee questions sometime today -- recently received a criminal sentence of five months probation for dealing steroids and HGH. If prosecutors determined he was anything less than completely forthcoming with them, they could argue before a judge that he violated the terms of the plea deal, thus putting him in jeopardy of a much harsher sentence and one that includes jail time. In short, neither Knoblauch nor Radomski would appear to have anything to gain by attending the hearing and possibly quite a bit to lose.

2) Why did Congress grant Pettitte's request?

Committee Chairman Henry Waxman and Ranking Minority Member Tom Davis said in a joint statement that Pettitte and Knoblauch have already "answered all the Committee's questions and their testimony is not needed."

The committee granted Pettitte's request, apparently because it received from him an affidavit, which is a formal statement of facts sworn under penalty of perjury, that corroborates McNamee's testimony.

3) What does this mean for Roger Clemens?

Clemens should be troubled by this new development. If Pettitte's affidavit implicates Clemens, the committee would be more likely to ask the Justice Department to investigate whether Clemens perjured himself while testifying before the committee. Indeed, there is no apparent reason why Pettitte would lie about Clemens, especially to members of Congress who could have him charged with perjury. Along those lines, expect members of the committee to grill Clemens about Pettitte's affidavit and to demand that he reconcile Pettitte's statements with his own.

As a separate point, and in Clemens' defense, it is plausible Pettitte might have asked out of appearing if he admitted to Congressional members more frequent and sustained use of steroids and HGH than is alleged against him in the Mitchell Report. If so, asking out might mollify expected damage to his reputation, since instead of revealing those admissions in tomorrow's closely-watched public hearing, they could instead be disclosed at a later and less noticed time. That interpretation, however, is pure speculation.

4) Can the committee use a private deposition in a public setting?

Yes, absent an agreement between the committee and the source of the materials, the committee can use any materials compiled in connection with its investigation in a public setting. For that reason, any statements contained in Pettitte's affidavit can, and I suspect will, be used in committee members' questioning of McNamee and Clemens. Pettitte's affidavit provides a series of purportedly factual statements under the penalty of perjury, meaning that if he lied in any of those statements, he could be charged with perjury. Apparently, members of the committee believe Pettitte's statements are clear and thorough enough so that he need not attend. In addition, by excusing Pettitte, Radomski, and Knoblauch (though adding DLA Piper partner Charles Scheeler), the committee may have decided to spend more time asking questions of Clemens and McNamee than previously intended.

5) Would Clemens and McNamee have pre-hearing access to the depositions given by Pettitte, Knoblauch, etc?

Neither Clemens nor McNamee had a formal right to pre-hearing access to the depositions of the other witnesses, for the reason that such access might unfairly advantage subsequent witnesses in preparation for their own depositions. It appears, however, they have learned about those depositions through informal sources. Generally speaking, Congressional members and their staffs are expected to maintain confidentiality with the depositions, though a deposed witness and his or her attorney are free to discuss the deposition.

6) Are those depositions permanently private, or could they become public, and if so, when?

The depositions should become public by the time the committee issues a report on the Mitchell Report and the illegal use of steroids and other performance-enhancing drugs in Major League Baseball. The report should be published later this year, unless the committee determines that its investigation warrants a longer schedule.

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