By Russell Berman - 07/06/11 05:04 PM EDT
Congress spurred the Roger Clemens perjury trial, nearly scuttled it and will play a major role in the case against the baseball star.
The trial, which began with jury selection Wednesday in a federal court in Washington, centers on the former ace’s testimony to the House Oversight and Government Reform Committee in February 2008.
The conflicting accounts led Rep. Henry Waxman (D-Calif.), then the chairman of the House Oversight committee, and former Rep. Tom Davis (R-Va.), then the panel’s top Republican, to request a federal criminal investigation into whether Clemens or McNamee lied to Congress under oath. The federal probe resulted in Clemens being charged with perjury, making false statements and obstruction of Congress.
Yet while it was Congress that initiated the case in 2008, it was also Congress that nearly foiled the trial on Wednesday.
The federal judge hearing the case, Reggie Walton, sharply criticized the House for refusing to release audio tapes of Clemens’ deposition to the oversight committee in 2008, citing the separation of powers. The court has a transcript of that deposition, but defense lawyers for Clemens argued that the audio tapes are needed because they show the tone and inflection of his voice.
Walton said Congress’s refusal to release the tapes, articulated through a lawyer for the House counsel’s office, threatened to undermine public confidence in the judicial system. “It doesn’t make sense to me to hide behind technicalities,” Walton said during a pre-trial hearing Wednesday morning. “This country would sink if we did not have a strong judiciary that the American public believes in.”
Walton previously presided over the high-profile 2007 perjury trial of I. Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney.
The judge instructed prosecutors for the government to press the House again to release the tapes, but he declined a defense request to delay the start of the trial or throw out the case entirely. “I don’t think it’s significant enough to justify the dismissal of these charges,” Walton said. He did, however, suggest that if the audio tapes did prove significant, Clemens could have grounds to appeal a potential conviction.
A lawyer for the House has told the court lawmakers would need to pass a resolution instructing the clerk’s office to release the tapes.
Clemens, 48, recorded 354 wins, struck out 4,672 batters and won a record seven CY Young awards in a 24-year career that ranked him at or near the top of any list of pitchers in baseball history. Yet his defiant refusal to acknowledge steroid use alleged by McNamee and his close friend Andy Pettite, along with the criminal charges, have torpedoed his chances to make the Hall of Fame.
Clemens’s defense team plans to attack McNamee’s credibility and accuse him of lying and fabricating DNA evidence that he gave to the government. Clemens was indicted on six counts a year ago and could face more than a year in prison if convicted.
Former Sen. George Mitchell, who wrote a report on steroid use in Major League Baseball that prompted the congressional investigation, is a potential witness in the trial, as are a former House parliamentarian, Charles Johnson, and Phil Barnett, who served as staff director for Waxman on the oversight committee and is now staff director for the House Energy and Commerce Committee, where Waxman is the top Democrat.
Walton asked potential jurors a series of questions related to Congress, including whether they had any opinions about Congress – or congressional staff members – that would impair their ability to be impartial. He also asked if they knew any current or former members, or staff, and whether potential jurors thought Congress or government agencies should be investigating the use of anabolic steroids or human growth hormone in professional sports. Lawmakers were criticized in some quarters in 2008 for spending time and taxpayer dollars probing steroid use rather than more pressing national issues.
The Clemens case, officially designated the United States of America v. William R. Clemens, is believed to be the first time in more than a decade that a person has stood trial for obstructing Congress. San Francisco Giants infielder Miguel Tejada pleaded guilty to lying to Congress about his use of steroids in 2009. Former Giants slugger Barry Bonds, the all-time homerun king, was convicted in April of obstructing justice in a criminal investigation of steroid use; he never testified before Congress.
The charge of obstructing Congress was central to the Iran-Contra prosecutions following the Reagan administration.
Prosecutors confirmed on Wednesday that might call a parade of former MLB stars to the witness stand, including Mark McGwire, Sammy Sosa, and Andy Pettite. Baseball commissioner Bud Selig, Yankees general manager Brian Cashman and former Yankees manager Joe Torre are also on the potential witness list for the government. Yankee veteran Jorge Posada and Jason Giambi, now with the Colorado Rockies, are the only current players who might testify. The judge has not decided, however, whether he will allow former players to testify about their steroid use if it does not relate to Clemens.
Clemens attorney Rusty Hardin said the defense might call former Red Sox and Yankees great Wade Boggs to the stand, along with David Cone, the former pitching star who is now a television analyst for the Yankees.
Wearing a dark blue suit and tie, Clemens appeared to be following the court proceedings closely. He twiddled a pen and read along as the judge read a series of 82 questions to potential jurors. He did not speak, although at one point he helped Hardin identify the team that one former player and potential witness had played on.
In individual interviews, the judge and attorneys for both sides peppered potential jurors with queries on their views about steroid use and professional sports in general. They found quite a diversity of views. One middle-aged woman said she didn’t “like baseball at all.” “I can’t imagine spending money on a sport where men scratch themselves and spit,” she said. Another said that while she watches sports on occasion, “If [Clemens] was sitting there I wouldn’t know who he was.”
After one man described himself as an avid sports fan who often watched “SportsCenter” and had worked as a personal trainer, Hardin quipped that he was the “poster person” for a potential juror that would concern the defense. “I didn’t realize how bad a lawyer I was until I watched ESPN,” Hardin said, arguing that the sports channel had already convicted Clemens in the court of public opinion. After more than 30 minutes of questioning, the man conceded he was more likely to find Clemens guilty and was excused.
Walton implored the potential jurors to steer clear of media coverage of the case.
Updated at 4:53 p.m.