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Republicans turn on Roger

Congress united against Clemens in request for probe

Posted: Wednesday February 27, 2008 2:52PM; Updated: Wednesday February 27, 2008 5:04PM
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Roger Clemens
It seems that Roger Clemens has lost the Republican support he had during his congressional hearing.

The House Oversight and Government Reform Committee's request to the Justice Department may trigger lasting consequences from both legal and political perspectives.

First, consider the basics of the letter. Although the committee cannot indict Roger Clemens or directly seek an indictment of him, it has asked the Justice Department to investigate whether Clemens knowingly made false statements to the committee while under oath. The Justice Department will almost certainly honor the request and immediately commence a thorough investigation. It will primarily look into whether Clemens committed perjury, which refers to knowingly lying under oath about a material matter, and obstruction of justice, which refers to knowingly trying to impair a proceeding in any material and unacceptable way. Both are felonies, which can lead to prison sentences with a conviction. (Though such sentences are less likely for first-time offenders.)

In addition to determining if Clemens committed perjury and obstruction of justice, the Justice Department will also investigate whether Clemens may have knowingly lied while not under oath, for example, when he spoke with committee staff. If he did, he may have violated Title 18 of the U.S. Code (Section 1001), which is the subject of the Justice Department's investigation of Astros shortstop Miguel Tejada. That too is a felony.

If the Justice Department concludes that Clemens committed at least one of the above mentioned felonies, it would seek a grand jury indictment. It would probably secure such an indictment, for at least three reasons: 1) There is compelling evidence that Clemens knowingly lied; 2) Obtaining a grand jury indictment only requires the government to show probable cause, meaning the government need only convince a grand jury that Clemens "more likely than not" committed the crime, as opposed to proving that he did so "beyond a reasonable doubt," the burden required for a conviction; and 3) Grand jury proceedings tend to favor the government, as the prosecutor determines which witnesses appear and whether any receive immunity. The prosecutor conducts the questioning of the witnesses, and a defendant may not even have his counsel present.

The letter should be disheartening to Clemens for another reason: It was signed by ranking Republican Tom Davis, who, like other Republican members of the committee, had previously voiced support for Clemens. Clemens and his attorneys likely held out hope that Davis would refuse to sign the letter, thus signaling disapproval from the 18 Republican members of the 43-member committee. Though a letter signed only by Henry Waxman would have still have almost certainly generated an investigation by the Justice Department, Clemens and his attorneys would have pounced on the opportunity to characterize such an investigation as more about partisanship than about substance. They can no longer do so.

Similarly worrisome for Clemens is the glaring absence of Brian McNamee's name as one whom the committee believes should be investigated. Though a subsequent letter could include McNamee, it appears instead that committee members, including Republicans, now echo the sentiment of the vast majority of Americans: McNamee seemed to be telling the truth, while Clemens did not.

A person close to the committee with knowledge of its proceedings explained to SI.com that the committee found no material inconsistences or contradictions in McNamee's testimony. Any apparent errors by McNamee concerned minor points -- a few mistakes in dates. Substantively, everything McNamee told the committee appears to be true. The source added that other members of the committee could request a Justice Department investigation into McNamee, though it is unlikely the letter would receive much attention from the Justice Department.

The jointly-signed letter to investigate Clemens offers an opportunity for the committee to make amends for the surprising and off-putting partisan division evidenced during the hearing on Feb. 13. Many Americans and committee members themselves -- including Waxman -- expressed grave disappointment that partisan affiliation, rather than substantive insight, directed the debate. Although topics such as steroids in baseball and the veracity of witnesses should have remained "above politics," they instead prompted partisan bickering. Wednesday's letter, however, suggests that the committee now speaks with one voice, one that embodies the views of most Americans.

The Republicans on the committee may benefit the most from Davis' decision to sign the letter. Virtually every available measure of public opinion indicates that an overwhelming majority of Americans do not believe Clemens. An informal survey of third-party observers, such as columnists and bloggers, suggests similar attitudes. In an election year when Democrats are already favored to pick up seats in both the House and Senate (and perhaps also the White House), a Republican defense of Clemens may have proven self-defeating. That will no longer be the case.