WASHINGTON – He’s got a voice like molasses, a bob to his head and a lean to his body. When he looks up, it’s hard to find his eyes. Brian McNamee is giving his opening statement to Congress.
“I told the truth," he says. "I told the truth about steroids and human growth hormone.”
The chamber is packed, the air stale, a bevy of cameramen sprawled on the floor in front of McNamee and Roger Clemens, pointing their bulky lenses like bazookas. Three piercingly bright lights shine down from on high in the witnesses’ eyes.
An hour earlier, looking at the nice printouts pasted on the blue leather chairs, you might have imagined it was a wedding: Clemens’ family and friends on the left, McNamee's friends and family on the right. Except that McNamee’s friends include the lead BALCO investigator – IRS agent Jeff Novitzky – and two other federal agents who made a point of showing up early.
When Clemens entered from the back, a hush came over the room, as if he’d brought in a stiff winter wind, the cameras clicking like rustling leaves. He stood tall for a long time, turning slightly, his expression unshaken, before taking his seat.
CLEMENS AND STEROIDS
• Jonathan Littman: McNamee's puny credibility good for Clemens (Feb. 13, 2008)
• Jeff Passan: Clemens, McNamee takes hits in hearing (Feb. 13, 2008)
• Dan Wetzel: Clemens shelled by Congress (Feb. 13, 2008)
• Jeff Passan: Hearings: Untruth and consequences (Feb. 12, 2008)
• Steve Henson: Clemens drama worthy of "Sopranos" (Feb. 11, 2008)
• Dan Wetzel: Innocent or stupid (Feb. 11, 2008)
• Jonathan Littman: Clemens-McNamee duel has BALCO roots (Jan. 8, 2008)
• Tim Brown: Telephone tap dance is unpersuasive (Jan. 7, 2008)
• Tim Brown: Clemens drowns in hopelessness (Jan. 6, 2008)
• Jeff Passan: Clemens to testify under oath (Jan. 4, 2008)
• Tim Brown: Who to believe (Jan. 3, 2008)
• Dan Wetzel: Denials by proxy make Clemens look worse (Dec. 18, 2008)
• Dan Wetzel: Clemens is no different than Bonds (Dec. 13, 2008)
Clemens went extra innings and did not pull out a W. "It's hard to believe you, sir. I hate to say that," Rep. Elijah Cummings, a Maryland Democrat would say at the conclusion. "You're one of my heroes, but it's hard to believe."
There was the "misremembering." The stumbling. The trouble with dates and details. The abrupt switching of subjects. Clemens couldn’t answer to the deposition of former teammate and key witness Andy Pettitte, who strangely wasn’t there.
“But Clemens stood strong and never backed down on his claim of innocence,” said Craig Silverman, a former Denver chief deputy district attorney who prosecuted perjury cases. “It was the opposite of Mark McGwire.”
Yet all in all, Clemens should count himself lucky that the only man he faced Wednesday was McNamee. One by one, critics of the event, largely Republican Congressmen, decried the hearing as the modern day equivalent of a Roman Circus, a colossal waste of taxpayer dollars, wondering aloud how their national oversight could come to focus on a single baseball player.
Along with Clemens’ equivocations, our tax dollars bought a very ugly accuser: McNamee had lied to the police about an alleged rape several years ago, lied to the feds at least three times, obtained a doctorate from a degree mill and exaggerated about being the inventor of the Roger Clemens workout. We learned McNamee has threatened to sue people for crackpot reasons.
In five minutes, Congressmen Dan Burton (R-Ind.) gave a preview of what Clemens' attorney Rusty Hardin might do to McNamee in a perjury case. Burton started with McNamee’s lies to the federal prosecutor and investigator.
BURTON: So you didn't tell the truth then initially to them?
MCNAMEE: No, sir.
BURTON: You lied.
MCNAMEE: Yes, sir.
Twice more in rapid succession, Burton established that McNamee lied to the media and to federal investigators, exclaiming, “Oh, it’s another one!”
Then he read one of McNamee’s statements: “I don't have any dealings with steroids or amphetamines. I don't buy it, sell it, condone it, or recommend it …”
BURTON: Did you say that?
BURTON: That's a lie, right?
MCNAMEE: A partial lie.
The hearing room broke into laughter.
Partial lie is not a phrase you want your star witness to coin if you’re hoping to bring a perjury charge.
But as the questioning continued, McNamee made clear he was a man given to changing his mind.
“Those were ballpark numbers,” McNamee said of changing his story on the numbers of injections he allegedly gave Roger Clemens.
“Every time I met with the investigators I had more time to think about it.”
So why didn’t McNamee say to Clemens that he was telling the truth during that infamous taped phone call by Clemens?
“If you know my jargon,” McNamee began slowly, seeming to chew on his words like a sandwich. “You would know I did say that in my own way. I told him, 'It is, what it is.'”
Yes, that was the biggest laugh of the entire day.
Yet there was also a creepy undercurrent of the unspoken: If you know my jargon. … If you knew what was going through my mind. … If you knew what made me tick.
Does the Department of Justice really want to find out?
Experts say that many of McNamee's admissions Wednesday and over the past few months have made a Clemens perjury charge a minefield.
Rep. Christopher Shays (R-Conn.) further impugned McNamee's flagging character near the closing bell. After Shays called him “a police officer who was a drug dealer,” McNamee shot back, “It’s your opinion.”
McNamee ended with a line the Department of Justice will regret, as to what he was doing with those drugs and the players.
“I just do what they asked.”
This is a witness who talks too much.
“As a prosecutor for 16 years, the last thing you want is to have one of your witnesses going around, giving interviews and statements,” said Charles La Bella, a former U. S. attorney and chief of the criminal division for the Southern District of California who now practices criminal defense in San Diego. “All those statements can wind up being used by the defense; any inconsistencies, anything taken out of context. It could be devastating. You don’t want him giving speeches.”
Other experts seemed at a loss for what the long-running steroid inquisition is all about. “I understand what Congress is doing,” said Charles Weisselberg, a professor at UC Berkeley’s Boalt Hall School of Law. “I am not sure what the Justice Department is doing here.”
McNamee said he had no motive to do anything other than tell the truth. Not revenge. Not staying out of jail. Yet McNamee told an investigator for Clemens that after first volunteering nothing about the pitcher, he was hit with the bad cop, bad cop routine from the tough tag team of prosecutor Matt Parrella and Novitzky, culminating in the IRS agent throwing a piece of paper at him, and followed by Parella saying, “You’re going to jail.”
Legal experts say juries often do not believe coerced witness testimony. Stephen Trott, a judge of the Ninth Circuit Court of Appeals and nationally known expert on the subject, wrote in the Hastings Law Journal: “Criminals' willingness to do anything to get what they want, includes lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies and double-crossing anyone with whom they come in contact, including – and especially – the prosecutor.”
By chance, Trott is one of the Ninth Circuit judges who might hear a further appeal by the MLB Players Association and drug testing lab on the BALCO search of MLB testing records. Said La Bella of the Clemens' spectacle: “This has all the earmarks of a case where the defense could put the government and the investigator on trial.”
The only prosecutable case against the pitcher may be a charge of perjury. Wednesday's hearing made it abundantly clear that McNamee lied. Isn’t that a federal crime?
Consider what committee chairman Henry Waxman euphemistically called McNamee’s "Incident."
The word on the street is that the BALCO feds may not have known about The Incident. That Mitchell didn’t know about the Incident. On Wednesday, we discovered that Waxman was happy to drag Clemens’ wife and nanny into the fray, but wouldn’t talk about McNamee’s girl trouble. In 2001 McNamee was questioned in an alleged swimming pool rape. McNamee’s story was that he was “saving” a woman. The Associated Press reported McNamee was having sex with the woman and “would not stop when he was confronted by security.” She had been given GHB – a date-rape drug. The police allege McNamee lied.
As for McNamee's years-old collection of syringes and gauze and beer cans, it was great theater for Congress. Not what the court ordered. “In a criminal prosecution you certainly don't want to have your evidence spilled in front of the media,” said La Bella of the syringe. “You're tipping off the defense. In federal court you don't have to show the evidence before you bring the case.”
There’s another potential problem – McNamee’s tardy turning over of the evidence. He was first interviewed by the feds last June, yet he didn’t turn over the goods to Novitzky until January.
Said La Bella: “If he didn't reveal the evidence and he was required to do so under his immunity agreement – and I assume he would have been asked if he had physical evidence – there may be some potential breach of the (immunity) deal. The defense can use that in cross-examining him.”
The last-minute accusation that he also shot up Clemens’ wife with HGH might have been one more potential aberration that might make McNamee poison to a jury. However, Clemens admitted it was true, while his wife, Debbie, squirmed in her seat one row behind him.
“It goes to his credibility,” Rhodes said. “The timing of these disclosures. These are exactly the kinds of things that prosecutors worry about.”
That is, if this is about law and order.
“There’s a lot not to like here,” Rhodes said. “Many of the participants have agendas other than getting at the truth."
Politics were clearly on display at the hearing. It was no accident that most Democrats seemed to side with McNamee while most Republicans took it easy on Clemens.
“It is going to depend on the discretion of some prosecutor who has been appointed by George W. Bush and his Justice Department," said Silverman, the former Denver prosecutor. “I don't think Bush would like to see Clemens prosecuted. You are talking about a Texas icon and an American icon, and I think you have to factor that in.”
Mike Rains, the Barry Bonds attorney known for scrapping with the BALCO prosecutors, was content watching this one from the bleachers in California. He believes the Clemens-McNamee fight may ultimately harm the government’s reputation and pending prosecutions – including the perjury case against Bonds.
“It's going to catch up with them. It's only a matter of time,” Rains said. “We certainly intend to make Novitzky's conduct part of Barry's defense.
"They're all a bunch of thugs. They will be held accountable.”
- Roger Clemens
- Brian McNamee