Commentary Magazine


The Roger Clemens Farce Recommences

What do you do after committing a horrendous legal error that causes a mistrial while attempting to prosecute a case in which it is far from clear there was any actual crime? If you’re the federal government, there’s only one answer. Re-try the famous defendant you’ve targeted in the first place simply because he was wealthy, obnoxious and unpopular. That’s the short explanation of the federal government’s decision to take another crack at sending baseball great Roger Clemens to jail for allegedly lying about taking performance enhancing drugs when called to testify at a show trial congressional hearing.

Even fans of the teams for whom he played found it hard to root for him. Now that the mud of the steroids scandal has been splattered over a career in which he won a staggering 354 games and struck out an amazing 4,672 batters (achievements that rank as, respectively, the ninth and the third highest totals in the history of baseball), he’s even less likable than ever. But that is no excuse for the government to waste more of its time and resources attempting to prove he lied when he denied using PEDs. There was no excuse, other than a congressional desire to grandstand in front of the cameras, for the hearings during which he allegedly made false statements. And there’s no excuse, other than the Justice Department’s desire to hang a famous scalp on their door, for a retrial of Clemens, especially after the first ended in a disastrous prosecutorial error that created a mistrial last summer.

Let’s once again specify that breaking the rules of the sport to use PEDs is wrong (though, to be accurate, steroids were not specifically banned by baseball for most of Clemens’ career though it was always illegal to use them without a prescription) and if he gained an unfair competitive advantage, that ought to be held against him when his career achievements are assessed. Clemens was just one of hundreds of players who appear to have gone this route. The majority of those nabbed by drug tests were mediocre ballplayers whose abuse did not magically transform them into stars–much less hall-of-famers. But because Clemens would have been a first ballot candidate for Cooperstown had he not been identified as a user, he has been given special treatment first by Congress and now by the U.S. Attorney’s office.

Clemens’ real sin appears to be not so much his using PEDs, but his failure to admit he was a user. Clemens’ personal trainer Brian McNamee dropped the dime on his former friend and boss in order to avoid prison on other charges and cooperated with baseball’s special investigative committee headed by former Senate Majority Leader George Mitchell. When Congress called McNamee to testify about steroids in baseball, Clemens denied the charges under oath.

It may well be that Clemens is as dirty as McNamee says he is, but the hearing during which he was said to have lied was a public farce with no possible purpose relating to government issues or the public good. The government claims that evidence of steroid use preserved by McNamee proves that this is more than a case of conflicting testimony, but even if they can back that claim up, there is still no real underlying crime in this case.

As I wrote last summer after the last trial collapsed, there is something bizarre about a government drug prosecution in which the peddlers of illegal goods are spared prison in order to entrap and then imprison drug users for perjury. There is no public policy benefit to shaming Clemens any further. Nor is there any conceivable justification for the expenditure of millions of taxpayer dollars on dubious investigations of famous athletes such as Barry Bonds, Lance Armstrong and now Clemens that have more to do with ambitious prosecutors that may be every bit as big as those of their prey.

The only proper venue for a debate about Clemens’ baseball misbehavior is in forums devoted to whether he and others similarly accused ought to be excluded from baseball’s Hall of Fame. But those who wish to moralize about steroid use should cease trying to make this a federal crime. Judge Reggie Walton, who presided over Clemens’ mistrial last year, expressed well-grounded skepticism about the case against the former player and the wisdom of further pursuing this issue. Now that this parody of justice is back in his courtroom, he ought to act on those instincts and throw it out before any more of the government’s time and money is wasted on this sad business.

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