Friday, February 29, 2008

Two weeks ago, the House Oversight and Government Reform Committee held a hearing regarding the use of steroids and human growth hormone (HGH) in Major League Baseball. Star witnesses included Roger Clemens, the seven-time Cy Young Award winner and Brian McNamee, Mr. Clemens’ longtime trainer, who said he administered steroids and HGH to Mr. Clemens on numerous occasions from 1998 through 2001.

The hearing garnered its share of criticism as to whether the alleged “juicing” practices of Major League Baseball players warranted a full day of congressional inquiry. However, Chairman Henry Waxman and ranking member Tom Davis should be applauded for conducting a fair investigation and making a bipartisan referral to the Department of Justice to review whether Mr. Clemens committed perjury in his sworn deposition and testimony before Congress. These actions go a long way toward showing us that no one is above the law, not even our most revered athletes.

Mr. Waxman and Mr. Davis made the right decision to hold this hearing. The hearing was a follow-up to the Mitchell Report, which was commissioned by Major League Baseball in the wake of the committee’s first hearing on this topic in 2005. For some time, sports professionals and the general public had watched with skepticism and awe as multiple players chased and ultimately toppled Roger Maris’ longtime record of 61 home runs in a single season, a record that had stood untouched for more than 40 years. American fans and Major League Baseball were finally forced to acknowledge that something must be up, and ultimately the Mitchell Commission inquiry began in early 2006, due in large part to the committee’s prodding.

The Mitchell Report validated, in a thorough and professional manner, the suspicions that performance-enhancing drugs were pervasive in baseball. In particular, the report relied on Mr. McNamee’s information to conclude that Mr. Clemens, among others named, used steroids and HGH to gain a competitive edge. Mr. Clemens vigorously denied the charges and his attorney, Rusty Hardin, in turn disparaged the report. The integrity of the Mitchell Report was challenged, and the committee understandably felt compelled to look into the allegations. Had the committee not done so, a cloud of doubt would have lingered over the Mitchell Report, devaluing its findings and the deposition testimony of players like Andy Pettitte before the committee staff. In the end, the committee’s hearing helped to remove any doubt that the Mitchell Report was done in a fair and balanced manner. The hearing showed the report for what it is: a quality work product that should stand as the final comment on a sorry chapter in professional baseball.

I understand Mr. Waxman’s postmortem concerns about holding the hearing; it was not a pleasant experience for anyone involved. Personally, I was stunned by the vituperative comments directed at Mr. McNamee. Nevertheless, the committee should be commended for taking the time to demand an explanation; to have Mr. Clemens and Mr. McNamee testify under oath; and to let the public judge for itself.

The committee’s hearing received widespread media coverage, to say the least, but this was hardly publicity for publicity’s sake. Congressional hearings, precisely because they are so visible, can be a highly effective tool for enacting change, if done thoroughly and responsibly. Congressional hearings into Enron’s financial fraud, Hewlett-Packard’s corporate spying scandal and the Ford-Firestone tire recall, by graphically exposing problems and abuses, helped bring about necessary changes that have made businesses more accountable.

Congress’ oversight responsibilities are critically important, and even the best investigations can be fatally undermined if witnesses feel that they can lie or withhold the truth without fear of the consequences. In this context, it was appropriate, and indeed necessary, for the committee to refer Mr. Clemens to the Department of Justice given the litany of evidence suggesting that he likely perjured himself during his deposition and the hearing.

In this day and age of podcasts, wireless Internet access and 24/7 news, a high-profile congressional hearing such as this one might be the only way to highlight to the American public, and young people in particular, the important lessons involved here. First, the hearing reinforced that steroid use was prevalent in professional baseball. “See no evil, hear no evil” is no longer a viable defense. It also raised the stakes for athletes that consider cheating. Finally, and perhaps most importantly, the hearing and the resulting criminal referral serve notice that testifying truthfully before Congress and the American public is not an option, but rather an obligation.

The idea of Roger Clemens — the most dominant pitcher of his generation — possibly facing a criminal investigation for perjury should help to ensure that accountability and honesty remain valued traits in our culture.

Mark Paoletta, who served as chief counsel for oversight and investigations for the House Energy & Commerce Committee (1997-2007), is a partner at Dickstein Shapiro LLP. He represents Brian McNamee.

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