Congress asks Justice Dept. to probe Clemens

BY JIM BAUMBACH AND ROBERT E. KESSLER | jim.baumbach@newsday.com; robert.kessler@newsday.com

February 28, 2008

Congress officially asked the Justice Department to investigate Roger Clemens on perjury charges Wednesday. (Pablo Martinez Monsivais/The Associated Press / February 27, 2008)

Roger Clemens, one of the best pitchers and most self-confident players in baseball history, bet two weeks ago that he could convince Congress that he never took steroids or human growth hormone. Clemens also bet he could argue compellingly that his accuser and former trainer, Brian McNamee, was lying.

Yesterday, Clemens lost those bets, and lost them big time.

The ranking members of the House Committee on Oversight and Government Reform, before whom Clemens and McNamee testified, asked the U.S. Department of Justice to investigate whether Clemens committed perjury under oath when he denied any use of illegal drugs.

Noticeably, the request did not ask that McNamee be investigated for perjury. Noticeably, the request was signed by both the committee's leading Democrat, chairman Henry Waxman (D-Calif.), and top Republican, Tom Davis (R-Va.). While questioning McNamee and Clemens, most Democrats appeared to support McNamee and most Republicans attacked him, with one calling him "a liar."

Most respected legal commentators, such as Harvard Law professor Alan Dershowitz, had written that even if Clemens knew he had not been injected with the drugs by McNamee, he was foolish to testify for fear of falling into some sort of "perjury trap." But brimming with the seemingly righteous certitude that probably helped make him a star pitcher, Clemens testified under oath.

The appearance of outright contradictions in Clemens' testimony, however, were enough to bring the congressional referral.

Oath or no oath, it is a felony to lie to a federal officer or a congressional committee - not a well-known fact, which is why that statute is referred to as "the prosecutor's friend." Secondly, federal agents do not need a congressional referral to investigate possible perjury or potential crime they witness.

Federal agents from San Francisco, who have been debriefing McNamee and heading the investigation into drug abuse in professional sports, were in the hearing room listening to Clemens' and McNamee's testimony.

A spokesman for the U.S. Attorney's office in San Francisco declined to comment last night.

The congressional letter to the Justice Department did not state that Waxman and Davis thought Clemens perjured himself. The congressmen wrote: "We believe that his testimony in a sworn deposition on Feb. 5, 2008, and at a hearing on Feb. 13, 2008, that he never used anabolic steroids or human growth hormone, warrants further investigation."

A separate memorandum posted on the committee Web site listed many instances in which Clemens' testimony was found to be "implausible." Among them: that Clemens never took the drugs; that McNamee injected him with B-12 and lidocaine instead; that Clemens never was told that baseball's investigative Mitchell commission wanted to speak with him; and that in 1998 he was not at a party at teammate Jose Canseco's home. It was there, McNamee testified, that he suspected Clemens first discussed using steroids. Shortly after that, McNamee testified Clemens asked to be injected with steroids.

The letter also said federal investigators may have more evidence than the committee has, an apparent reference to needles, drug vials and bloody gauze that McNamee is said to have turned over to federal agents.

Mark Paoletta, McNamee's lawyer who specializes in congressional hearings, released a statement saying: "The committee's investigation, and this referral, go a long way toward showing all of us that no one is above the law, not even our most revered athletes."

Clemens' attorney, Rusty Hardin, released a statement saying: "The committee's decision is unwarranted and not supported by the facts ... Roger Clemens has known from the beginning that if he chose to speak publicly and challenge what the Mitchell Report said about him, he would one day face a criminal referral from Congress. The fact that he chose to testify twice under oath while knowing the short-term consequences is clear proof of how strongly he believes he has done nothing wrong."

A spokesman for the Justice Department, Peter Carr, said only, "The Department is reviewing the letter and has no further comment at this time."