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Wednesday, February 20, 2008
Clemens spectacle offers many pointers
The Atlanta Journal-Constitution
The House of Representatives left town last week for its Presidents Day recess without having addressed the matter of amending the law defining how much power the federal government should have to electronically spy on American citizens.
President Bush wants the government to have ever greater powers to surveil citizens. Telecommunications companies want the government to immunize them for disclosing private communications information on their customers to the government even if those requests are unlawful. Hence the president’s public pique at the Congress for failing last week to definitively address this matter.
However, the Congress, or at least the Committee on Oversight and Government Reform, apparently concluded there were far more important matters to deal with last week than defining the power of the federal government to surreptitiously surveil the citizenry without limit.
The House, you see, was investigating whether an aging but still outstanding major-league baseball pitcher, Roger Clemens, or one of his former trainers, Brian McNamee, was more believable in determining whether the pitcher had used performance-enhancing substances during the course of his now short-circuited career. The mavens of Capitol Hill had decided that subjecting Clemens to a day of grilling on the issue of steroid use among big-league ballplayers was the most important issue on the national agenda last week. While I and many others disagree with this prioritization, the proceedings actually were rather instructive.
The Clemens-McNamee steroid hearing provided a textbook example for future congressional witnesses of how not to be a congressional witness. Clemens’ appearance, and the lead-up to it, should be required reading for every future potential witness before a congressional oversight committee —- and for every lawyer representing such an individual.
First of all, you rarely, if ever, voluntarily subject yourself to be the punching bag for a congressional oversight committee; especially one headed by one of Washington’s most clever, intelligent and toughest interrogators —- Rep. Henry Waxman (D-Calif.). Yet Clemens, one of baseball’s greatest pitchers ever (nicknamed “The Rocket” for good reason), volunteered to sit there, under the glare of virtually every major media outlet in the country, and try vainly to trade verbal body blows with one of America’s top inquisitors and his large staff of investigators. Clemens never had a chance; and one wonders why his lawyers ever agreed to let him volunteer for such a mismatch.
If clearing your reputation truly is important to you, then choose a forum where you have at least some degree of control. Testifying before a public committee headed by hostile elected officials who control virtually every aspect of the proceeding is most definitely not such a forum.
Another rule of this course in Congressional Testimony 101: Do not volunteer to be a witness in your own prosecution on a slow news day. For heaven’s sake, don’t go around the Hill hyping your own appearance to guarantee it becomes even more of a spectacle than it might otherwise have been.
Clemens made other mistakes as well, which guaranteed he would emerge from the ordeal in worse shape than before he entered. For one thing, McNamee, Clemens’ accuser and co-witness, was far better trained as a witness than Clemens was. He was, no doubt, prepped by federal agents and congressional investigators, including perhaps those who were among Clemens’ tormentors that day. Whatever problems Clemens might have faced prior to his congressional escapade, his potential problems afterward are more, not less, serious.
His reputation is now not only unsalvaged, but further undermined. And because his volunteered testimony was under oath, he now faces the possibility of a perjury prosecution, depending on how federal investigators —- some of whom were present in the audience listening to and no doubt recording his every word —- interpret his testimony. Finally, since volunteered evidence can be used just as effectively (if not more so) as other evidence in prosecuting a person for criminal offenses, including alleged drug violations, which were the basis for this whole mess in the first place, Clemens may have given prosecutors fresh evidence for substantive charges.
While Clemens might still be able to control masterfully the speed and rotation of a baseball as it traverses the 60 1/2 feet between the pitcher’s mound and home plate, his ability to control a panel of congressional inquisitors interested in hitting a public relations home run of their own at his expense clearly is far more limited.
