Posted: Tuesday May 1, 2012 2:40PM ; Updated: Tuesday May 1, 2012 4:05PM
Michael McCann
Michael McCann>SPORTS LAW

Is the government wasting tax dollars on Roger Clemens' trials?

Story Highlights

After Congressional hearing, two trials, a lot of money being spent on Clemens

February 2008 hearings also prompted some important change in some drug laws

Performance-enhancing drugs has become huge public issue in pro sports

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Roger Clemens is in the midst of his second trial for allegedly lying to Congress.
Roger Clemens is in the midst of his second trial for allegedly lying to Congress.
AP

As the Roger Clemens trial plods along, many are asking, in one form or another: Why did Congress waste millions of our tax dollars to investigate if a baseball player used steroids?

It's a question that has been repeatedly asked since Clemens testified before the House Committee on Oversight and Government Reform on Feb. 13, 2008 and defiantly claimed that he had never used illegal steroids or Human Growth Hormone. The committee's doubts about Clemens' truthfulness led to an investigation by the U.S. Justice Department, a nearly 16-month grand jury proceeding, perjury charges, a mistrial last summer and, finally, a new trial. All told, millions of tax dollars have been spent by the federal government investigating and prosecuting Clemens.

The lingering belief that the Congressional hearings and subsequent developments were all a foolish use of government time and money has not gone away. Prospective jurors even admitted to U.S. District Judge Reggie Walton that they felt the Congressional hearings were wasteful. One potential juror went so far to describe it as "a little bit ridiculous" that Congress would investigate Clemens instead of numerous matters more crucial to the nation. As expected, attorneys for Clemens have tried to capitalize on this sentiment in their defense. They hope to persuade jurors to nullify the government's case on grounds that it never should have been brought to trial.

While there are legitimate criticisms of the investigation and prosecution of Clemens, myths and falsehoods about the infamous Congressional hearing in 2008 have emerged and are worthy of correction. You may even come to believe Congress was right, or at least justified, in calling Clemens to testify.

Myth 1: The Congressional hearing was about Roger Clemens.

Truth: The hearing was originally intended to last one day and to feature medical experts testifying on a related, but far more serious topic: the clinical effects of HGH, vitamin B-12 and other performance-enhancing drugs and motivations for athletes to use them. A hearing on this topic took place a day before Clemens testified. Four prominent doctors -- Thomas Perls (Boston University School of Medicine), Alan Rogol (University of Virginia), Todd Schlifstein (New York University School of Medicine), and Susan Shurin (National Institutes of Health) -- submitted expert statements and, with few media present, answered often probative questions from members of Congress.

Sources close to the committee's investigation describe Clemens as an afterthought who used his celebrity status and political connections to claim relevance. He and his former trainer/chief accuser, Brian McNamee, only became subjects of the committee's interest in HGH after Clemens requested a hearing to challenge accusations levied against him in the Mitchell Report. In a debatable decision, the committee, which had already held a hearing on the Mitchell Report on January 15, 2008 and thus had a continued interest in the Report's integrity, acquiesced to Clemens' demand. The committee scheduled a hearing for Feb. 13 and although only one of 89 players implicated by the Report would testify, curiously titled it, "The Mitchell Report: The Illegal Use of Steroids in Major League Baseball." The hearing turned into a much-publicized and much-ridiculed showdown between Clemens and McNamee.

While somewhat defensible given the committee's previous hearing on the Mitchell Report, the committee's willingness to grant Clemens his own forum smacks of preferential treatment. In Schlifstein's view, the Feb. 13 hearing "was a side show and circus" and completely unwarranted. "It's not like tons of players were challenging being named in the Mitchell Report," Schlifstein says. "It was one guy." Even worse, the Feb. 13 hearing may have distracted from, and undermined the credibility of, the Feb. 12 hearing. "At the time, there was a lot of interest in HGH and the mystery surrounding its benefits and drawbacks," Schlifstein says. "It was a discussion worth having, until everything was sidetracked by Clemens."

Myth 2: The hearing was unlawful.

Truth: The hearing was lawful. The Government Reform Committee is the House's main investigative committee and has jurisdiction to investigate any matter that implicates federal policy. The interstate and possibly international sale of illegal steroids and non-prescribed medicines (like HGH) clearly implicate federal policy, not to mention federal drug trafficking laws. They also invite discussion of the potential need for enhanced criminal penalties and government-imposed drug testing regimes for professional sports leagues. Major League Baseball's generous antitrust exemption, which Congress could repeal, arguably also empowers Congress to investigate Baseball with greater scrutiny. In the view of Travis Tygart, an attorney and chief executive officer of the U.S. Anti-Doping Agency, "Congress did exactly what it was supposed to be doing."

Myth 3: The hearing cost millions of tax dollars.

Truth: Contrary to popular belief, Congress did not expend unusually high resources investigating Clemens or, for that matter, HGH, B-12 and other substances. In fact, the costs associated with the two February 2008 hearings were comparable with most 110th Congress hearings, some of which also concerned "nonessential" topics but nonetheless failed to attract the same level of media scrutiny and public scorn.

According to people involved in the February 2008 hearings, no outside staff or attorneys were hired and most of the work entailed receiving and distributing statements from health experts. Clemens and Andy Pettitte were also interviewed, under oath, by staff members and their statements were recorded and transcribed. The staff did not incur any travel expenses in conducting the interviews. Clemens also visited several members of Congress in their offices for short conversations.

Myth 4: Nothing good came of the hearing.

Truth: While the Clemens hearing may have been a circus and waste of time, the related hearing featuring four doctors a day earlier was anything but. For one, serious topics were discussed, such as links between use of HGH and cancer and other diseases; the frequent sale of tainted or impure HGH; and the absence of proven correlation between use of HGH, B-12 or Lidocaine and improved athletic performance. Timely points were also made, including discussion of how HGH may help sustain benefits obtained from using steroids. In response to the expert information, members of Congress inquired about prospective changes to federal law, such as adding HGH to the list of Schedule III drugs, which would criminalize HGH's unlawful possession, or providing federal funding for the development of a reliable HGH test. In sum, the panel of experts used their time to offer expert testimony, which was then used by Congress to consider changes to law.

Also, while Congress did not pass legislation directly related to the hearing, it did pass the Ryan Haight Online Pharmacy Consumer Protection Act, which was signed by President Bush in October 2008 The Act increased penalties for the sale of anabolic steroids and placed greater restrictions on patients obtaining doctors' prescriptions for related substances, including HGH.

Myth 5: Americans don't care about this topic.

Truth: Many Americans care about having clean sports. The widespread interest in the Congressional hearings featuring sports and drugs seems to confirm that. Empirical research does as well. According to the "What Sport Means in America" study conducted by the U.S. Anti-Doping Agency in 2011, "Americans rank the use of performance-enhancing drugs as the most serious problem facing sport today, closely followed by issues such as the focus on money, and the criminal behavior of well-known athletes."

Americans also care about HGH and understanding, as Schlifstein says, its potential for good and harm. "Some celebrities, like Sylvester Stallone, have praised HGH as a super drug, but it's worth having a conversation on what it actually does and doesn't do," Schlifstein said. Whether HGH's association to Clemens' infamous testimony prevents such a conversation remains to be seen.

Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also serves as NBA TV's On-Air Legal Analyst. Follow him on Twitter.

 
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