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February 16, 2008

Still more on lying, Clemens, Bonds and equal justice

This New York Times commentary, headlined "Justice Will Be Served Only if Clemens Isn’t Given a Pass," echoes points I have been making about the need for equal steroid justice.  Here are excerpts:

What we all know now is that someone was lying. And at this juncture, that someone would seem to be Clemens. We’re not talking about razor-thin, “I thought it was flaxseed oil” types of lies before a federal grand jury, which is what Barry Bonds stands accused of. We’re talking about potentially whopping lies before Congress, before the world....

If there is fair and equal justice under the law, Clemens should become the next super athlete, after Marion Jones and Bonds, to be pursued by [government agents] to the end of the earth.  Or at least to a room containing a federal grand jury.

Bonds was ultimately indicted on four counts of perjury and one count of obstruction of justice for telling a federal grand jury in 2003 that he never knowingly took illegal performance-enhancing drugs. The public was not privy to Bonds’s flaxseed performance before the grand jury. If we had been, maybe we would have come away with the same “Are you kidding me?” reaction that many had to Clemens’s testimony on Wednesday, particularly when he said that his friend and former teammate, Andy Pettitte, had “misremembered” previous conversations between the two men.  The flaxseed oil comments became the basis for attacking Bonds, for belittling his historic home run chase of Henry Aaron.  Now we are confronted by a performance by Clemens that makes Bonds’s flaxseed story seem almost naïve.

But none of this means a thing unless the Department of Justice investigates Clemens.  On the surface, there seems to be little choice but to do so. What Jones and now Bonds and Clemens have in common is not accusations of illegal use of steroids but of lying to representatives of the federal government: Jones to federal agents, Bonds to a grand jury and Clemens to members of Congress.

Jones was pursued and disgraced and finally sentenced because she lied; Bonds was pursued and faces a trial because the government believes he lied. Clemens, by virtue of his performance Wednesday, has to be a prime candidate for the same treatment....

[There is a] potential racial divide over punishment, with Jones unceremoniously carted away, with Bonds up next, and with Clemens, a bigger-than-life Texan with some bigger-than-life friends, hoping to emerge unscathed by the law.  Earl Ward, an African-American who is one of Brian McNamee’s lawyers, directly addressed the issue of color Thursday, noting that “several people of color have been caught up in the steroids scandal” and that if Clemens is left uninvestigated, “it would send the entirely wrong message to African-Americans.”  Ward is a paid adversary of Clemens, of course, but what he is saying, many others are thinking.

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February 16, 2008 at 08:20 AM | Permalink


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» Clemens Isn't Guilty Because of Race from Simple Justice
While the fate of Roger Clemens isn't the foremost issue of critical consequence facing society today, it raises issues of sufficient consequence to be worthy of discussion. [Read More]

Tracked on Feb 16, 2008 9:27:31 AM

» Clemens Isn't Guilty Because of Race from Simple Justice
While the fate of Roger Clemens isn't the foremost issue of critical consequence facing society today, it raises issues of sufficient consequence to be worthy of discussion. [Read More]

Tracked on Feb 16, 2008 6:17:14 PM


Doc, I keep seeing you re-emphasize this and I just can't believe you mean it: Clemens should be prosecuted because of his skin color, for appearances' sake. Really?

Your position is the equivalent of calling for reducing racial profiling ratios at traffic stops by increasing the number of improper police stops of white people.

This is all a witch hunt by grandstanding pols. It was wrong when it was aimed at black folks, and it's wrong aimed at Roger Clemens. Two wrongs don't make a right.

Posted by: Gritsforbreakfast | Feb 16, 2008 4:12:35 PM

Grits, I think lying to Congress and/or federal prosecutors is an important wrong to vindicate through the criminal justice system. The entire legal system depends on people being truthful under oath. Not everyone should be prosecuted for lying under oath, but the failure to prosecute people who lie under oath in high-profile settings undermines the rule of law.

In short, I disagree that this is "a witch hunt by grandstanding pols." I suspect that people with children that are the victims of steroid abuse in high-school sports would agree with me. As would Victor Rita, who is serving 30 months in prison for a much less important lie. Of course, you might have Scooter Libby on your side.

Posted by: Doug B. | Feb 16, 2008 6:56:23 PM

The problem is the "proof" it seems to me. This guy McNamee is not a very credible witness. Moreoever, let's not forget Rafael Palmeiro lied to Congress, and no one is clamoring to go after him. Bottom line, the clamor to prosecute is about optics. Unless there's more evidence (as there was with respect to the other cases), it's difficult to see how a prosecution is not a waste of time.

Posted by: federalist | Feb 16, 2008 7:24:58 PM

I have to agree with Doug. This thing is too high-profile. We all watched someone lie to Congress on TV the other day and I beleive it was Clemens. Just as important, he lied about steroids which are illegal. I think this distinction is important to those of us who did want to see Bill Clinton impeached for lying about sex.

Posted by: DAG | Feb 16, 2008 8:33:38 PM

You state that none of this means a thing unless the Justice Department investigates Clemons. Hmmm. Maybe you did not watch the media circus and witch trial that I saw on televions this past week. Take one look, no two, at McNamee and tell me you would like to be a prosecutor putting this lying weasel, along with Andy Petitte in front of a petit jury. No pun intended.

Extrapolate this scenario out to the law schools. Suppose that three or four students or three or four law professors are accused of plagiarism. Maybe all are guilty. Then Mr. Kafka comes along and is accused of cheating. But the accusor is an admitted liar. Are we obligated to prosecute Kafka just because he stands accused? Or do we look at each case separately without regard to race or creed or Russian ethnicity?

The Waxman hearings remind me of the Army McCarthy hearings-- only with more cameras, and more innuendo. Last week there was no minority counsel to stand up for some poor schmuck witness-- like Mr. Welch did fifty plus years ago. And no one to address the sneering demogogue and ask him if he had no shame. Clemons gets castigated because he says that his mom recommended vitamin B-12. I think mine did too.

I have heard no outcries for prosecuting others for lying in Congress. This is an era of serious lying by public officials, both in and out of Congress: weapons of mass destruction in Iraq, torture, atomic bomb research in Iran, Mark Foley and young male pages, Mr. Abramson the lobbyist. There is no outcry for prosecuting Senator Craig or drumming him out of office. Here is a guy soliciting sex in a public toilet, pleading guilty to somewhat of a lessor offense, and then denying it. Why not subject Senator Craig to the Waxman hearing room of one hundred cameramen, ten Comgressmen, and no counsel for the alleged perp?

All of this does "mean a thing". It means that in America we have not progressed one twit from the Joseph McCarthy era. We show our children that it is perfectly just to reward criminals like McNamee with immunity from prosecution and reward them for bagging large game to be slaughtered on the alter of public opinion. We teach the lesson to all people not to trust anyone because this is an Orwellian world in which liars get rewarded for defaming you. The Chairman of the show trial receives accolades and enrichment. The media has a field day. And the individual gets chopped up.

Posted by: mpb | Feb 17, 2008 5:30:13 AM

Doug, I think you're missing Grits' point. You jumped right over the guilty piece, deciding that Clemens is the liar here when the only basis for your conclusion is the preference for McNamee's performance over Clemens'. Even witnesses who do a lousy job giving testimony are telling the truth. You ought to know it's not that simple.

If it turns out that there is evidence to support concluding that one is lying, then you are correct that he should be prosecuted, and certainly the offense is no less serious because it was committed by a white man than anyone else. But why rush to judgment when right now, frankly, there is no basis whatsoever to conclude that Clemens was the liar except for what some (but not others) think was a poor performance before the committee?

While knee-jerk decisions of who is the liar may suit AUSAs, who are quite certain that they have the magical ability to know the unknown with absolute certainty, wouldn't it be best for the rest of us to try some evidence-based reasoning before we lock them up?

Posted by: SHG | Feb 17, 2008 7:13:33 AM

Oops. Should read: Even witnesses who do a lousy job giving testimony may be telling the truth.

Posted by: SHG | Feb 17, 2008 7:15:32 AM

"I suspect that people with children that are the victims of steroid abuse in high-school sports would agree with me"

Oh really? Where are these people? I've never seen nor heard one parent of a steroid using kid speaking out in these hearings. Indeed, this has nothing to do with kids (except, again, in statements by grandstanding pols). Nor does it have anything to do with the 88 other people named in the Mitchell report. Clemens is being pursued because of his fame, which means the case is about public relations, not justice - at least not equal justice.

I don't believe there's evidence to convict of perjury, so Greenfield's right - by wanting to prosecute based on race rather than the merits, IMO you're (improperly) putting the cart before the horse.

Posted by: Gritsforbreakfast | Feb 17, 2008 8:55:06 AM

As any federal prosecutor will tell you, lots and lots and lots of people get sent to federal prison on the basis of snitch testimony that is MUCH weaker than the testimony of McNamee. In addition, we have the testimony of Andy Pettite, who seems to be a much more important and effective piece of evidence that anything that we have against Bonds. Also, Roger's performance (in Congress and in the MLB), his wife's admitted HGH use and the fact that so many other players around him have lied about steroid use all provide powerful circumstantial to support a prosecution.

Keep in mind, I'm not saying Clemens is guilty, just like I'm not saying Bonds is guilty. It should be a jury's job to hear all the evidence and make this decision. But, right now, Bonds has been indicted for a much less serious and much less public lie, while Clemens has lots of (mostly white fan?) providing all sorts of reasons why he should get better treatment than Bonds.

Posted by: Doug B. | Feb 17, 2008 8:56:35 AM

You know, why was the whole steroids/sports thing a congressional matter to begin with? Yes, I understand the whole interstate commerce link (what isn't i.c.?), but really, is this really a federal matter?

And is anyone really surprised that these guys are on roids? Why is everyone so shocked?

Doug- building off you next post, how much money do you think the federal government is wasting on this? I suppose whether it's wasteful depends a lot on your perspective (kind of a lot like the death penalty I suppose).

Posted by: Steve | Feb 17, 2008 9:03:32 AM

"lots and lots and lots of people get sent to federal prison on the basis of snitch testimony that is MUCH weaker than the testimony of McNamee"

Perhaps, but not many of Rusty Hardin's clients. He'll eat McNamee for lunch on cross.

Posted by: Gritsforbreakfast | Feb 17, 2008 9:07:26 AM

Oh, and FWIW, Doug, I said the same thing about the "much less serious" charges against Barry Bonds, see:


I think this whole investigation is a travesty.

Posted by: Gritsforbreakfast | Feb 17, 2008 9:16:48 AM

Why aren't folks compaining about the $$$ being spent on prosecuting Bonds?

Unless and until folks who are defending Clemens start demanding that federal prosecutors dismiss their indictment against Bonds, I am going to think race and fan-dom are impacting perspective more than law and facts.

Again, recall that Bonds never asked for a public forum and nobody even really knows what he has said. But Clemens has lied to the entire nation in a Clintonian way, and about something that's criminal in its own right. I understand the outrage about the spectacle, but this spectacle has already cost Bonds a lot more than its cost Clemens, perhaps only because Clemens has been a more effective and forceful lier.

Sad and I think reflective of structural racism in the operation of our criminal justice system.

Posted by: Doug B. | Feb 17, 2008 9:17:18 AM

Doug, maybe you missed my last comment. I did just that when Bonds' perjury indictments came down. See:


Posted by: Gritsforbreakfast | Feb 17, 2008 9:20:38 AM

And ditto for Marion Jones, see:


Posted by: Gritsforbreakfast | Feb 17, 2008 9:21:39 AM

Fair enough, Grits, though I wonder if you also aboject to the prosecutions of Lewis Libby and Victor Rita, too.

And, more importantly, your vision of justice for Bonds and Jones can still be achieve. You and others who do not want Clemens prosecuted should be writing letter to AG Mukasey asking for Bonds' indictment to be dismissed and for Prez Bush to pardon Jones. Why do I doubt any Clemens supporters will be writing such letters anytime soon?

Posted by: Doug B. | Feb 17, 2008 11:27:47 AM

By your logic, Doug, the President's commutation of Libby's sentence would obligate Bush to commute sentences or pardon everyone you named, which incidentally wouldn't bother me (though I haven't really followed the Rita case).

IMO, and I know it's a minority one, neither prosecutions nor legislation should ever be pursued to "send a message." That's what billboards are for; prosecutors are supposed to "seek justice," and the law is not a public relations device. Today's USDOJ prosecutors appear to be the only people more hype-driven than the editors of Star magazine, picking who they'll go after based solely on who will draw the most TV cameras.

Posted by: Gritsforbreakfast | Feb 17, 2008 11:42:27 AM

How did the crucifiction of Clemens become the resurrection of Bonds and Jones? This isn't a zero sum game. It isn't Bonds or Clemens. One of the beauties of our system is that it can be wrong many times over, and still have room to be wrong again. Must we contribute to this mess?

And I'll call your Bonds and Jones, and raise you the many people who have been convicted on far less evidence. The problem isn't that Clemens hasn't been convicted too, but that all those others have.

Posted by: SHG | Feb 17, 2008 11:45:14 AM

I largely agree, SHG, though what really bothers me most is that skin color and economics likely determines who gets prosecuted and convicted more than many other more relevant factors. That's the troublesome "message" that gets sent if/when Clemens and Libby get to go on with their privileged lives, while Victor Rita (poor) and Marion Jones are right now locked in a federal cage (funded by our federal tax dollars) and Bonds has to keep spending his money and reputation to try to avoid the same fate.

Posted by: Doug B. | Feb 17, 2008 1:46:50 PM

"But Clemons has lied to the entire nation in a Clintonian way.." Doug said that above? If you want to retrieve that statement then please do. Tell us the lie, tell us the proof that it was a lie, and tell us the Clintonian way. Mr Doug is joining the McCarthy bandwagon.

Posted by: mpb | Feb 17, 2008 8:12:49 PM

I know that we would like to make the legal system non partial, even and fair. It just isn't. It contributes to the cynicism of citizens. It is no longer possible to know what will be prosecuted, plea bargained, or ignored. It is no longer possible to know how the courts will rule when relief is sought. A very sad commentary.

Posted by: beth curtis | Feb 17, 2008 9:19:25 PM

MPB: Since you asked, here goes:

1. The big Clemens lie is his assertion that he "knew nothing" about HGH before the Mitchell report came out. (This seems Clintonian because, like Bill's denial of having "sexual relations with that woman," it was stated in a very public setting with a lot of false indignation. And, according to lots of folks, it was the Clemens team that wanted this public setting to tell the big lie.)

2. The proof that this is a lie comes from:

a. McNamee's testimony (which is akin to Lewinsky's testimony)

b. McNamee's physical evidence (which is akin to the blue dress Lewinsky had)

c. The Mitchell Report (which is akin to the Starr report)

d. The undisputed evidence that Clemens' wife took HGH (from McNamee) and talked to Clemens about it years ago.

e. Statements by Andy Pettite that Clemens twice talked to him about HGH.

f. The fact that Clemens apparently sought to influence a potential witness (the Nanny)

g. The reality that Clemens achieved extraordinary performances as he aged

h. The fact that Clemens has extreme financial incentives to use HGH and then lie about it.

i. The fact that so many other elite athlete have baldly lied about steroid involvement.

I could go on, and on, and on, and on. For me this issue is not so much whether there is sound evidence against Clemens to justify an indictment, but the remarkable defense he is getting from thoughtful people on this blog.

Notably, I am often accused of beeing too pro-defendant on this blog, and yet now I am getting a lot of grief about wanting to see Clemens subject to the same laws that Barry Bonds and Marious Jones have been subject to. Am I the only one who thinks that Clemens' skin color and great fortune in part explain why he --- and so few other criminals --- have staunch defenders like federalist and others who usually want to throw the book at criminals?

Posted by: Doug B. | Feb 17, 2008 11:54:18 PM

Lets go over the "evidence":
a. McNamee's testimony gets admitted into evidence but then he gets trashed as a liar. He looks like a weasel. Look at him!
b. McNamee's bloody needles do not get admitted on foundation grounds. And what do they prove if they do get into evidence-- that Clemons had injections? He admitted injections.
c. The Mitchell Report does not get admitted into evidence because of the hearsay and Confrontation Clause issues.
d. Clemons wife took steroids and discussed it with Clemons doesnt prove that Clemons knew anything about the steroid. Which is probably why he was upset because he didnt know anything about the steroid or whatever it was. Or maybe he was upset because she was in the bedroom with the weasel.
e. Pettite's statements do not prove that Clemons knew anything about steroids. They talked about guys with corked baseball bats but they didnt know anything about the bats or who altered them. They talked about pitchers who threw spitballs but didnt know how they got away with it or how it worked.
f. The nanny. Tried to influence her? How is that relevant to knowing anything about steroids.
Tried to influence her is a different crime. Not admissible. If I had a foreign born nanny with poor English skills and knew that she was about to be thrown to the wolves at the circus of Congress then I think I would try and ease her apprehensions. They asked Clemons to find her. He also testified that his mom advised him to take vitamin B-12, does than mean he cant talk to his mom now? Can he not talk to any of his team mates anymore?
g. Prove the "reality" that performance got better. Yes Mr. prosecutor open the door to this one. I would put on Satchell Page's statitists as evidence. They didnt have steroids in his day. Didnt Bret Favre have one of his best years this past season? Bob Gibson's stats got better after his first five years. I would put on Bob Gibson as a witness.
h. Try proving the extreme financial incentives to use steroids. Mr. Clemons you had extreme financial incentives to use steroids didnt you? Answer: No.
i. Evidence of other liars does not get into evidence. Clemons may be a baseball player but all baseball players are not liars, just as all automobiles are not Fords.

We could go on and on, just like the committee did at circus time. But a federal trial is not a circus. I sort of liked the comment about the needles by the Congressman who was a former judge. Those needles will not get into evidence. I like the comment from Congressman Burton who looked about the room at all the cameramen and said that it was a circus.

I knew nothing about HGH until the Committee went on television last week. After the Committee was done I knew nothing about HGH.
I have been watching television since the Army McCarthy hearings. But I do not know anything about television--how it works. I spoke with ten different people about HGH after the hearing (which was after the Mitchell Report) and none of us knew anything about HGH.

I thought the big lie was supposed to be that Clemons took steroid injections.
The best they can do is that he knew about HGH before the Mitchell Report.

I would wager that those people who actually watched all of the televised hearing have a different opinion about Clemons and the admitted liar sitting two seats to his right, than those folks who heard accounts about the hearing from the New York Times, Fox news commentators or others.

Posted by: mpb | Feb 18, 2008 3:46:09 AM

"Am I the only one who thinks that Clemens' skin color and great fortune in part explain why he --- and so few other criminals --- have staunch defenders like federalist and others who usually want to throw the book at criminals?"
It doesn't take a rocket scientist to see in black and white. We live in a black and white society.

Posted by: | Feb 19, 2008 9:38:44 AM

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