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The road from here

What's next for Clemens? Probably an indictment

Posted: Wednesday February 20, 2008 5:18PM; Updated: Wednesday February 20, 2008 5:18PM
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SI.com legal analyst Michael McCann has been closely following the Roger Clemens-Brian McNamee story since the release of the Mitchell Report late last year. Today he answers seven key questions about what lies ahead for Clemens after last week's Congressional hearing.

Roger Clemens
The hearings are over, but Roger Clemens' legal process isn't anywhere close to being finished.
Mark Wilson/Getty Images News

1) The vast majority of Americans do not believe Clemens' denials. Does that influence the legal process?

There is no question that Clemens has already been convicted, beyond a reasonable doubt, in the court of public opinion. Absent conclusive evidence that allegations about him contained in the Mitchell Report are untrue, his baseball legacy appears ruined, his chances for admission into the Hall of Fame are in grave jeopardy and he even risks becoming a pariah: recognized everywhere he goes as someone of disrepute.

Clemens, however, must worry most about his potential exposure to criminal sanction and the prospect of incarceration. To his benefit, criminal guilt and innocence are not determined by prevailing sentiment on sports radio or the outcomes of on-line polls. In fact, the legal system is expressly designed to insulate itself from convictions by popular demand. Often this insulation draws acclaim as consistent with broader principles of due process and fairness, though it may occasionally contribute to stunning acquittals, perhaps the most famous being that of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman.

But the procedures for determining guilt and innocence may nonetheless be influenced by public perception, particularly when politics enter into the equation. We may detect that effect when the House Oversight Committee decides whether or not to ask the Justice Department to investigate if Clemens knowingly lied to committee members and staff. Notably, members are well aware of the public's reaction to the hearing: Last Thursday just one day after the hearing, committee chairperson Henry Waxman referenced polling data indicating that 90 percent of persons surveyed did not believe Clemens.

Considering the committee's awareness of public sentiment, as well the considerable time and tax dollars invested in the investigation, the committee may be hard-pressed to not place a request with the Justice Department. Then again, the majority of the committee may already share the public's sentiment about Clemens, thus rendering further investigation redundant.

The Justice Department, however, need not receive a referral by the committee in order to pursue an indictment. In fact, it has been reported that the Justice Department may soon commence an independent investigation.

2) What are the implications of the committee now regretting that it held the hearing?

According to Waxman, five days before the scheduled hearing both he and Congressman Tom Davis, the committee's ranking Republican, agreed to cancel the hearing. Given the depositions and other investigative materials already obtained, they believed it would be unnecessary. The Clemens camp, however, insisted that the hearing take place, either because, as explained by Waxman, Clemens could address the public or, as explained by Rusty Hardin, Clemens could expose the alleged untruths contained in the other witnesses' depositions. Whatever the stated reason, Waxman and Davis acquiesced to Clemens' request and continued with the hearing.

One might characterize the committee's granting of Clemens' wish as a reflection of due process principles that are fundamental to our legal and political systems. In this case, a witness who wanted an opportunity to vocally refute other witnesses' incriminating allegations against him received it.

Alternatively, the wish-granting might be additional evidence of the preferential treatment received by Clemens. The most glaring example of such treatment occurred when Clemens met privately with members of the committee prior to the hearing, a courtesy not extended to McNamee. At the very least, those private meetings were unfair to McNamee and call into question the hearings' credibility. Now we discover that Clemens received a Congressional hearing when Congress didn't want to hold it. The implications are profound: The committee held a hearing it believed was unnecessary in order to placate a star baseball player.

3) How might Clemens' "body language" from the hearing influence the legal process?

According to the eyes of many, Clemens seemed "nervous" and "fidgety," perhaps revealing dishonesty. I am reluctant to endorse that style of analysis. A good argument can be made that he would appear nervous no matter the truthfulness of his statements. Think about the situation in which spoke: sitting before dozens of congresspersons, who could request the Justice Department to consider seeking felony charges against him, while his professional livelihood hung in the balance, with millions of Americans watching. Could any more have been on the line?

Moreover, I think some have forgotten that Clemens has never shown a particular dexterity for public speaking; that he would suddenly morph into John F. Kennedy or Ronald Reagan at the most stressful time in his life seems a tad unrealistic. Given all those factors, I thought Clemens appeared reasonably poised and he certainly exceeded my expectations.

4) What is the legal significance of Clemens' connection to President Bush?

Though the hearing took on an unexpected partisan tone, some now contend that the divide reflected a personal relationship, even friendship, between Clemens and both President George W. Bush, a former owner of the Texas Rangers and a fellow Texan, and former President George H.W. Bush, as well as Clemens' presumed support for the Republican Party. One attorney for McNamee, Richard Emery, has even suggested that Clemens would receive a presidential pardon, perhaps even before being charged.

There are several reasons to question these provocative explanations. For one, even if Clemens supports the Republican Party on principle, it does not appear that he contributes money to it or its candidates. In fact, despite their vast wealth, neither he nor his wife Debbie Clemens has contributed to a candidate for federal office since at least 1990. In addition, by available accounts, it does not appear that Clemens has actively campaigned on behalf of any political candidate, including either Bush. Recently, however, Clemens did receive a phone call former President Bush expressing support.

A different explanation for the GOP's preference for Clemens may rest in the private meetings he attended with members of the committee last week. It is possible that Clemens enjoyed more success in his meetings with GOP members than with the Democrats, and both groups likely caucused separately before joining one another at Wednesday's hearing. Such an explanation, of course, would only reaffirm the procedural injustice of Clemens being extended the courtesy of private meetings while McNamee was not.

As to a presidential pardon, President Bush could grant a pardon to Clemens at any time while in office, as stipulated by Article II, Section II of the U.S. Constitution. In the most famous instance of a presidential pardon being granted before the issuance of criminal charges, President Gerald Ford pardoned former President Richard Nixon before any Watergate-related charges were brought against him.

Most pardon requests, however, are subject to a formal filtering procedure, conducted initially by the pardon attorney at the Justice Department. Under normal procedure, before a pardon request receives consideration, a petitioner must wait at least five years until after his conviction or release from prison, and he must demonstrate continued good behavior. Though the President can expedite or altogether bypass the normal procedure, as President Bill Clinton did in his controversial pardon of financier Marc Rich in 2001 and as President Bush did in his equally controversial commutation (which, unlike a pardon, only commutes a sentence and does not vacate a conviction) of I. Lewis "Scooter" Libby last year, it is rare.

As to insinuations that President Bush, or an underling, has already promised Clemens a pardon, these are highly-accusatory charges. Such a Presidential promise, in fact, could constitute obstruction of justice: By essentially telling Clemens not to worry about lying to members of Congress, the Bush Administration would have seemingly impeded the legal process. Would President Bush really risk committing obstruction of justice to help out Clemens in a Congressional hearing that may or may not lead to a request to the Justice Department, which in turn may or may not lead to an indictment, which may or may not lead to a conviction? It seems very unlikely.

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