Commentary Magazine


Arbitary Misuse of Government Power Struck Out in Clemens Case

The ability of the federal government to put an individual in peril of the law is virtually unlimited. Congress can force a celebrity to testify on matters that are of no material interest to the nation’s legislature. If the individual refuses to play along with the morality play narrative desired by the politicians who seize the spotlight, they can be charged with obstruction of justice or perjury and then paraded before a federal court and jailed. But sometimes the egregious nature of this charade is so great that the process is exposed as a sham. That is what happened on Monday when the Justice Department’s second attempt to imprison former baseball great Roger Clemens collapsed as he was acquitted on all six counts relating to his testimony before Congress on steroid use.

The Clemens farce was perhaps the worst example of a series of recent federal prosecutions of celebrities, including a few relating to steroids. As was the case with Martha Stewart, Barry Bonds and John Edwards, the only reason Clemens found himself in the crosshairs of the government was because he was rich and personally unpopular, a formula that has always presented an irresistible target to prosecutors. The case against Clemens was particularly flimsy, a point that was amply demonstrated last summer when the first attempt to try him ended in a mistrial. It was obvious then that the only sensible course was to abandon the prosecution, but instead, the Justice Department doubled down on the insanity, and the result was another go round that took nine full weeks and wasted millions more of the people’s money. But the problem here isn’t just that they failed, but that there was no real underlying crime in question, rendering the entire exercise an embarrassment.

Let us specify once again that if Clemens did indeed use performance-enhancing drugs while playing ball that is not a good thing. Steroid use was illegal without a prescription though not necessarily against the rules during most of his career. Clemens was the most prominent figure named when former Senate Majority Leader George Mitchell issued a report on the matter. The evidence against Clemens was hardly conclusive as it depended on the willingness of his former trainer Brian McNamee to give him up in exchange for having various criminal charges dropped. Nevertheless, most people assumed that Clemens, like many players of the era, both stars and mediocrities, used the drugs. But when Congress decided to hold a hearing on the issue, Clemens was called and subjected to what was an obvious perjury trap. His refusal to admit his guilt is what triggered the decision of the vindictive congressional grandstanders to ask that he be indicted.

While the question before the jury was the narrow one of whether he lied, it is worth restating that the notion that preventing professional baseball players from taking steroids is something the government should get involved in is absurd. The majority of those nabbed by drug tests were lousy ballplayers whose abuse did not magically transform them into stars–much less hall-of-famers. The idea, promoted by Congress, that there is some sort of national epidemic of steroid use is a myth. The threat posed to teenaged athletes from steroids is miniscule when compared to hundreds of other dangers to young adults in this country.

Though he was just one of probably hundreds of major leaguers against whom the allegation of steroid use could credibly be made, it was only the arrogant, obnoxious Clemens who was hauled into court. This was doubly bizarre because as I have noted previously, in drug cases it is always the sellers who are considered targets for prosecution, not the users. But because Clemens was a celebrity with a bad reputation, the full power of the U.S. Attorney’s office was arrayed against him in what turned out to be a futile effort to cash in on his notoriety and to collect a famous scalp.

Perhaps the most interesting result of this massive waste of scarce federal resources is that when subjected to the intense scrutiny of a trial, the case against Clemens was revealed to be a thin tissue of unsubstantiated allegations. McNamee wasn’t credible and the other witnesses against Clemens, including former teammates, helped the defense more than the prosecution. It is unlikely that after all the mud that has been thrown at him that Clemens will get back his reputation or gain election to Baseball’s Hall of Fame, something that was certain prior to the Mitchell Report. The prejudice against anyone suspected of being a steroid user on the part of the writers who can vote to send a player to Cooperstown is so great that Clemens will likely not gain admittance to baseball’s shrine. If so, few will mourn the unpopular Clemens’ fate.

But that is a separate issue from the question of whether it was right for Congress and the Justice Department to embark on a vendetta against Clemens. The government had no business involving itself in what was essentially an internal industry issue.

Even worse than that, the Clemens case illustrated as well as any of the recent celebrity prosecutions the perils of the arbitrary use of federal power against an individual citizen. Though it is difficult for most of us to identify with a snarling millionaire whose arrogance made him tough to root for even as he won 354 games and struck out 4,672 batters during his career, Clemens was the victim here, not the villain. The point is not whether he took certain drugs but that if the government can single out a Roger Clemens and devote its efforts to finding a pretext to putting him in jail simply because he is famous and unpopular, then it can do the same to anyone, including those without the ability to hire high-priced legal help. Let’s hope the government learns its lesson from this circus and never repeats this egregious misuse of prosecutorial power.

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