Most of the media, Major League Baseball, teammates, and most of the public feel that Roger Clemens is guilty of steroid use and therefore guilty of perjury before Congress.
But wait. Reginald J. Brown, a former special assistant to President George W. Bush and associate White House general counsel has found a legal argument that he believes could win.
“Congress didn’t do this investigation to determine whether they needed new drug laws,” Brown said. “They didn’t do it to determine whether federal agencies were exercising their proper oversight. They did this to figure out whether Clemens or his trainer were telling the truth, and that is arguably not a legislative function. It’s not Congress’s job to hold perjury trials.” Brown said the argument had been used successfully before to have perjury charges dismissed.
We are not prepared to say Brown is right or wrong. What we are prepared to do is to say Clemens will not be convicted of a thing. And that this trial and any other trial will vindicate him. As long as the facts are largely known and the speculation required for announcing any result in advance remains correct.
The reasons for this belief are both facts and speculation.
First, the facts.
Clemens will have a number of options before trial. Included among those options will be to challenge the indictment on several legal grounds, including the one posed by Brown above. All such challenges will neither vindicate Clemens or make the public believe he was telling the truth. Suffice it to say that if he wants vindication, he will have to have his day in court. Clemens is unlikely to pursue many such challenges, as he clearly wants his day in court.
Second, Clemens' greatest problem is one of timing. His claim that he was talking with Andy Pettitte about his wife's use of HGH (human growth hormone) rather than his own use apparently suffers from the fact that his discussion occurred before his wife began her use. This is what is called an admission against interest, and likely admissible at trial. Assuming it is admitted at trial, Clemens and his trial team will have to overcome this issue.
Third, McNamee, the principal antagonist to Clemens, has his own problems.
Roger Clemens' legal team has given the congressional committee probing Clemens' alleged steroid used hard evidence that Brian McNamee lied to federal investigators and former Senator George Mitchell at least once, according Clemens' lawyer. McNamee told probers that, at a party in 1998, Jose Canseco and Clemens had a conversation McNamee believed was about steroids, and that the first time the pitcher asked McNamee about steroids was later in that same trip. Now, Clemens' legal team has acquired tapes of the June 9 and 10, 1998, games between the Blue Jays and Marlins. According to Clemens' lawyer, Rusty Hardin, broadcasters speak about the party hosted by Canseco and the fact Clemens did not attend.
In addition, McNamee was suspended as a NY policeman, and was involved in a police investigation involving the date rape drug. According to the police report, as stated by another website:
According to the police report, a hotel employee saw McNamee apparently having sex with the woman in the shallow end of the pool while the other man stood watching, naked, six feet away. When the three were asked to leave, the employee claimed, McNamee continued having sex, asking, “You mean now?” That was when the employee noticed that the woman was unable to get out of the pool on her own, stand up, or speak coherently, and instructed a co-worker to call the police. A medical report later determined she’d taken a massive dose of GHB, or gamma hydroxybutyrate, a sports drug used for recovery from strenuous workouts, but also known as the “date rape” drug because in larger doses it can incapacitate.
There are other problems that will be attacked, including the very basis for him giving up Clemens-so he could get off federal charges and leniency.
Fifth, celebrities often if not always get away with what many believe are crimes. Witness OJ Simpson and many others. In each instance, with superior lawyers and greater resources, the defense wins.
The speculation is based on several issues of significant note. They are speculative because the world next year, when the trial is likely to take place, could be vastly different from now.
First, and perhaps the most important fact, is that Congress will be the entity against whom Clemens is fighting. The current approval rating for Congress is at 16%, according to Rasmussen, with 56% saying Congress is doing a bad job. This is actually up from a recent 71% "bad job" rating. As Congress is the complaining party here, it should have more difficulty than most in proving its case.
Second, Congress' poor performance in the public's view should last until this case will be tried, perhaps well after the 2010 elections. Brown's argument is one that could be very effective if used at trial. Thus, Clemens will argue that this effort at finding out whether Clemens took steroids should have nothing to do with Congress. And this is likely to be persuasive to many jurors, especially when Congress is so disliked.
Third, the prosecution could have more evidence than we currently know about, and even more at the time of trial. We assume that most if not all of the currently available evidence is already in the public record.
Fourth, many baseball fans want to see this entire steroids controversy go away. And so does MLB. The jury will therefore be more than likely leading in favor of Clemens if they have any sensitivity toward MLB and getting this controversy behind us.
Unless the situation changes in the near-term, Clemens wins. And that is The Real Truth.