Tuesday, February 12, 2008

Congress will hold its much-anticipated hearings on performance-enhancing drugs in baseball tomorrow, and Roger Clemens, the star witness, is preparing for it the way he used to pitch. The big right-hander is still flashing his trademark pit bull tenacity and glaring at the opposition. He is still playing hardball.

Ever since the Mitchell Report cited Clemens as a user of steroids and human growth hormone in December, the seven-time Cy Young Award winner has vehemently and sometimes angrily professed his innocence in a variety of forums. He held a press conference and appeared on “60 Minutes.” He filed a civil lawsuit against his accuser and former trainer, Brian McNamee, and taped and released a telephone conversation with him.

Last week, Clemens met House Oversight and Government Reform Committee members apparently to help them get to know him better and to reinforce his credibility before testifying under oath.

“I don’t know what his purpose was,” Rep. Elijah Cummings, Maryland Democrat, told reporters afterward. “I think he wanted to give me a sense of himself as a person.”

Said Alan Milstein, a lawyer who has represented several athletes, including NBA players Allen Iverson and Eddy Curry: “It’s certainly been a strange way to go about defending yourself. It’s extremely aggressive.”

Milstein, who said the evidence against Clemens “isn’t very strong” and called the Mitchell Report “a very, very weak product,” said Clemens “is forcing the issue to be resolved one way or the other rather than stay in the background. He is making certain that everyone, including federal prosecutors, Congress and the Hall of Fame committee, is certain that he is telling the truth or not.”

Clemens’ legal team has been pitching high and hard, aiming at McNamee and his character at every opportunity.

McNamee told the Mitchell committee he injected Clemens with steroids and HGH at least 16 times from 1998 through 2001 and later claimed he shot up Clemens’ wife with HGH.

In what has been described as a classic “he said, he said” scenario, McNamee will testify tomorrow and reiterate his claims. Clemens’ former teammates, Andy Pettitte and Chuck Knoblauch, and Kirk Radomski, the ex-New York Mets clubhouse attendant and admitted drug distributor, were scheduled to speak but were dropped from the witness list last night.

As a result, Clemens-McNamee is just about the only fight on the card. Each gave a lengthy deposition to the committee last week, insisting his assertions are true.

“It’s a showdown,” said Michael McCann, a professor at Mississippi College School of Law. “Someone in the room will be lying. There’s no way the stories can co-exist without somebody being dishonest.”

Lawyer and ESPN legal analyst Roger Cossack said Clemens “has done everything he can do” to assert his innocence. “If you say that Brian McNamee is lying and ‘I have never taken steroids, period,’ he has done everything he can do to emphasize that position,” Cossack said.

“He’s the one who brought the libel suit. He said, ‘I’ll go to Congress and invoke my rights to waive the Fifth Amendment. I’ll testify under oath.’ The whole reason he was on the Hill was all about public relations and to make himself accessible. He can’t do any more than he has done.”

But not all legal experts are convinced Clemens — the “Angry Roger” who materialized after the Mitchell Report or the mellower fellow lately on display — is taking the right approach.

“From a public relations standpoint, there’s a little bit of he doth protest too much, methinks,” said Howard Wasserman, a sports lawyer and visiting law professor at Saint Louis University.

“He’s surreptitiously recording conversations and holding press conferences, and he did the ‘60 Minutes’ interview. On one hand, he’s getting out in front of it and talking back. On the other hand, it looks a little like too much noise.”

More noise was made during the weekend, when committee chairman Henry Waxman chastised Clemens’ flamboyant lead lawyer, Rusty Hardin, for comments he made about IRS special agent Jeff Novitzky, the main investigator on the BALCO case who reportedly got McNamee to name Clemens.

Responding to news that Novitzky planned to attend the hearings, Hardin said, among other things, “If [Novitzky] ever messes with Roger, Roger will eat his lunch.”

McCann, also the Chair of the Association of American Law Schools’ Section on Sports and the Law, said he does not believe Clemens’ legal team has been effective so far.

He said he was surprised at Clemens’ initial silence in the immediate aftermath of the Mitchell Report (his lawyers did the talking). And when Clemens did speak, McCann said, he did not come across well.

“The press conference didn’t do him any favors,” McCann said. “I don’t think people came away from the ‘60 Minutes’ interview feeling better about him. … He may be telling the truth. He may be completely honest. But there is a sense that he isn’t.”

But Cossack defends the aggressive posture and tactics.

“If I’m Roger Clemens and along comes somebody who says I cheated and I say you’re lying, what else can I do?” Cossack said. “Roger Clemens is the first one I know of to not only sue but go under oath. I’m sure he understands very clearly what happens if he lies under oath. I mean, what else can he do? Either stand up aggressively and say this is a lie or go hide out for a while.”

Clemens “has nothing to worry about if he’s telling the truth,” McCann said. “If he’s not telling the truth, there are a lot of problems he could encounter. Perjury charges being one. And obstruction of justice. Also lying to government officials.”

The possibility of that happening became more real Sunday, when lawyers for both Clemens and McNamee said the Justice Department might conduct a criminal prosecution and open grand jury proceedings to determine whether Clemens is lying.

If Clemens at some point is found guilty of perjury, his would be in a situation similar to that of former track star Marion Jones. The Olympic multiple gold medalist (before they were taken away) was sentenced to six months in prison in January not for steroid use but for lying under oath and her role in a check fraud scam.

McNamee’s lawyers presented “evidence” against Clemens last week — photographs of what he claimed were needles, bloody gauze pads and drug ampules used by Clemens that McNamee kept for eight years.

“That’s unexpected and strange for a lot of reasons,” Wasserman said. “But it’s all up in the air.”

With both Clemens and McNamee doggedly sticking to their stories, the stalemate might endure unless substantial evidence emerges — perhaps in the civil case against McNamee or in a potential federal investigation — to reveal the truth.

But Milstein, for one, believes Clemens stands to gain the most tomorrow.

“If in the end all it is is McNamee against Clemens, I think it confirms Clemens’ innocence,” Milstein said. “If there’s some evidence out there, they’re gonna find it. If no evidence is found, that tells me that Roger Clemens is telling the truth.”

Still, Clemens’ legacy and reputation as one of the greatest pitchers in major league history has been sullied, and whether he will be elected to the Hall of Fame in five years already is a matter of debate.

“I think he can still get to the Hall of Fame,” McCann said. “I think there will always be that stigma, but if it ends up a stalemate and if he appears before Congress in a way that people think he’s telling the truth, the weight of his record as a pitcher will eventually propel him to the Hall of Fame.”

This is the same discussion that surrounds all-time home run king Barry Bonds, whose name is inexorably linked with steroids despite what many consider to be the absence of conclusive evidence. But Bonds also has been indicted on perjury and obstruction of justice charges, and the same fate might await Clemens.

“You’ve got two of the most decorated players in history, and now we’re wondering if that will be enough to get them into the Hall of Fame,” said Jack O’Connell, the secretary-treasurer of the Baseball Writers’ Association of America.

“This will certainly damage their reputations whether it’s fair or not. The court of public opinion is tough, and it’s come down hard on these guys.”

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