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Posted: Tuesday January 12, 2010 1:32AM; Updated: Tuesday January 12, 2010 10:23AM
Michael McCann
Michael McCann>SPORTS LAW

Despite new confession, McGwire faces no perjury threat from 2005

Story Highlights

McGwire originally sought immunity from prosecution as a condition to testify

If he had come clean in '05, he may have been forced to implicate other players

The Cardinals may have required McGwire to confess before starting his new job

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Mark Wilson/Getty Images
If Mark McGwire had denied using steroids in 2005, he would have set himself up for perjury charges.

Mark McGwire testified before the Committee on Government Reform of the House of Representatives on March 17, 2005. During the hearing he declined to answer questions about whether he used steroids. On Monday, McGwire admitted that he did use steroids. SI.com's Michael McCann discusses the legal fallout.

1) Did McGwire perjure himself when he testified before Congress?

No. Perjury requires knowingly lying while under oath. McGwire followed his lawyer's advice by neither confirming nor denying that he used steroids. His opening statement set the tone: "My lawyers have advised me that I cannot answer these questions without jeopardizing my friends, my family and myself. I intend to follow their advice." He also repeatedly remarked, "I'm not here to talk about the past," even when that statement seemed unrelated to questions posed by members of Congress. McGwire's evasive performance may have been a public relations disaster, but he avoided committing perjury or any other crime.

2) If McGwire had a deal with Congressmen Henry Waxman and Tom Davis "not to talk about the past" why did they keep asking him about it?

McGwire originally sought immunity from criminal prosecution as a condition to testify. The immunity would have enabled him to implicate himself in criminal activity related to steroids without the threat of prosecution for that activity. The request, however, was denied by then U.S. Attorney General Alberto Gonzalez. The granting of immunity typically involves a balancing of several factors, including the likely probative value of the witness's testimony and the types of criminal acts potentially committed by the witness; Gonzalez concluded immunity was not justified.

McGwire eventually agreed to testify without immunity, but with a possible handshake deal with Waxman and Davis, the chairman and ranking member of the Committee on Government Reform, respectively, that he could skirt questions about his past by invoking his Fifth Amendment privilege. The privilege protects parties in a legal proceeding from disclosing information that they reasonably believe could be used in, or give rise to, criminal prosecutions of them. McGwire was concerned that admitting to steroids use would have constituted an admission of guilt under the Anabolic Steroid Control Act. Instead of expressly referring to his Fifth Amendment privilege, McGwire opted to say that he was "not here to talk about the past."

Unfortunately for McGwire, most members of the Committee were acutely interested in his past, and there was little either Waxman or Davis could do about it. Indeed, despite Davis's admonition to his colleagues that a House rule "protects witnesses and the public from the disclosure of defamatory, degrading or incriminating testimony in open Session," McGwire was repeatedly posed incisive questions by members of both parties, including Congressmen Bernie Sanders (now a U.S. Senator) and Patrick McHenry. Given that the hearing was watched live by millions of Americans, it would have been difficult for either the chairman or ranking member to cut off seemingly legitimate questions posed by Committee members. In reality, McGwire and his advisers should have appreciated that dynamic before they agreed that McGwire would testify. After all, as Congressman Mark Souder astutely observed that day, "As far as this being about the past, that's what we do. This is an oversight committee. If the Enron people come in here and say, we don't want to talk about the past, do you think Congress is going to let them get away with that? When we were doing investigations on the travel office, on Whitewater, if President Nixon had said about Watergate when Congress was investigating Watergate, we don't talk about the past, how in the world are we supposed to pass legislation?"

3) What would have happened had McGwire talked about the past?

If McGwire had denied using steroids -- that is, lie -- he would have set himself up for perjury charges. But keep in mind, under Title 18 of the U.S. Code (Section 1001), there is a five-year statute of limitations for federal perjury charges. That means that McGwire or any other witness from the March 17, 2005 hearing would need to face perjury charges by March 17, 2010. It is unclear whether the government would have had sufficient physical evidence to investigate and seek a grand jury indictment against McGwire; there does not appear to be a Brian McNamee-like figure from McGwire's past.

Alternatively, if McGwire had admitted that he used steroids -- that is, told the truth -- he would have been subject to investigation by federal authorities as to which steroids he purchased, when and how he purchased them, from whom he purchased them and similarly probing questions. In theory, McGwire could have faced criminal charges under the Anabolic Steroid Control Act. While some might point out that no player who admitted to using steroids has been prosecuted for purchasing or using steroids, keep in mind that those players -- including Alex Rodriguez and Andy Pettitte -- had not yet admitted to using steroids in 2005; McGwire and his attorneys did not have the benefit of observing those players' legal experiences.

McGwire's admissions of steroids and subsequent cooperation with federal authorities could have impacted other players and the steroids scandal in general. For instance, it may have aided federal investigations into other players alleged to have used steroids, including Barry Bonds and Roger Clemens. It may have also helped the Mitchell Commission in its internal investigation. On the other hand, by admitting that he used steroids and subjecting himself to potential prosecution absent cooperation with authorities, McGwire might have put himself in the uncomfortable and unenviable position of implicating friends and former teammates.

4) McGwire contended that he would have jeopardized his family and friends had he talked about the past. Is that true? What would have really happened?

McGwire could have implicated his family and friends in participating in criminal acts if he purchased illegal steroids from them or if they aided and abetted his purchasing of illegal steroids. Alternatively, had McGwire purchased illegal steroids from criminal or nefarious types, he may have feared that divulging any sellers' names could have led to reprisal against his family and friends. In hindsight, these may seem like far-fetched, almost quixotic concerns, but at the time McGwire's counsel may have encouraged McGwire to pursue the least risky strategy.

5) McGwire adamantly denied Jose Canseco's account of his using steroids with Canseco in the clubhouse. Does either player have grounds for a lawsuit against the other?

Both players could refer to defamation law, which concerns damaging and untrue statements that are publicly made. Neither player, however, would likely prevail in a defamation claim, particularly since neither player has enjoyed widespread credibility on the topic of steroids.

Slander is the oral version of defamation, while libel refers to defamation by written or visualized material. A defaming statement must be egregious, as opposed to one that is merely insulting. Public figures, like McGwire and Canseco, also have the burden of showing that the speaker had "actual malice" (that is, knowledge or recklessness) in making a defaming statement. The truthfulness of a statement is almost always an absolute defense to defamation.

McGwire could contend that Canseco libeled him in his book, Juiced Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big. In the book, Canseco claims to have injected McGwire, among other assertions about McGwire's use of steroids. McGwire could assert that while he indeed used steroids, Canseco's description of McGwire's usage was untrue and that the description injured McGwire's reputation and exposed him to public ridicule. Such a claim seems unlikely to succeed, however, given that the core claim by Canseco -- McGwire used steroids -- has been acknowledged as true by McGwire.

For his part, Canseco could argue that by denying Canseco's assertions, McGwire slandered him, but such a claim would be similarly difficult. McGwire's denial of Canseco's assertions, while perhaps undermining Canseco's book, probably does not rise to slander, particularly when most people seemed to disbelieve McGwire. The statement would also have to have injured Canseco's reputation and exposed him to public ridicule, consequences which seem unlikely to be shown.

6) Did McGwire have any legal incentives to admit the truth today?

It's possible that the St. Louis Cardinals could have required, as a condition of McGwire's employment as team hitting coach, that McGwire publicly admit that he used steroids. It would have been a reasonable request. The Cardinals understandably would not want a coach serving as a media distraction, and had he not made his admission, McGwire could have become just that.

7) Does today's admission have any legal impact on criminal actions against Barry Bonds and Roger Clemens?

Probably not. Unless McGwire has information about those players and is willing to share it, McGwire's admission is limited in impact to him.

Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. In the spring of 2010, he will teach a sports law reading group at Yale Law School.

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