Roger Clemens was referred to the Justice Department for a perjury investigation Wednesday in a bipartisan letter that cites repeated contradictions in Clemens’ sworn testimony and alleges he “may have intentionally misled” Congress by denying he ever used steroids or human growth hormone.
“Significant questions have been raised about Mr. Clemens’ truthfulness,” said Rep. Henry A. Waxman (D-Beverly Hills) and Rep. Tom Davis (R-Virginia) in a letter to Atty. Gen. Michael Mukasey.
So baseball’s steroids era has come to this: Clemens, winner of a record seven Cy Young Awards, could face a federal grand jury probe as Barry Bonds, the all-time home-run leader and winner of a record seven Most Valuable Player awards, faces trial for allegedly lying under oath when he told a grand jury he had never knowingly used steroids.
“It’s a black eye on the game,” said Dodgers Manager Joe Torre, who managed Clemens for six seasons with the New York Yankees.
The letter did not refer Brian McNamee, the former trainer who claims he injected Clemens at least 16 times with steroids and HGH, an indication the House Oversight and Government Reform Committee was satisfied McNamee told the truth when he testified alongside Clemens on Feb. 13.
Clemens intends to proceed with his defamation suit against McNamee, meaning Clemens is suing McNamee for lying in statements the government could use to argue Clemens is lying. In any court, said Clemens’ lead attorney, Rusty Hardin, he looks forward to cross-examining witnesses about what he said were inconsistencies in depositions before Congress.
“We will get, in civil court alone, or in civil and criminal court together, what we believe is the only reliable lie detector test, and that is a jury,” Hardin said.
Richard Emery, an attorney for McNamee, said the referral represented “complete and utter public vindication for Brian” but said the possible criminal prosecution of a potential Hall of Famer offered no cause for celebration.
“I think it’s quite sad, but it was inevitable given Clemens’ delusional testimony,” Emery said. “His lawyers walked him into what I’m calling the hall of infamy.”
Hardin called the referral “an event of no consequence,” noting that the Justice Dept. has the authority to investigate no matter what Congress might ask and that Clemens was warned by his legal advisors for months that disputing the Mitchell Report under oath could lead to a perjury referral from Congress.
The “short-term consequences” did not dissuade Clemens, Hardin said, because the pitcher insists the allegations against him are not true.
Clemens has resolutely and repeatedly denied that he ever used performance-enhancing substances.
But, in addition to McNamee’s testimony, the letter said Clemens’ testimony was contradicted by former teammate Andy Pettitte, who testified Clemens told him he had used HGH. The letter also noted McNamee corroborated two conversations with Pettitte about Clemens’ use of steroids and HGH.
The referral simply asks for an investigation. The Justice Dept. need not investigate -- although Hardin said he expected an investigation was underway even before the referral -- and there is no certainty that an investigation would lead to charges.
“We are currently reviewing the letter,” Justice Dept. spokesman Paul Bresson said. “We have no further comment.”
Waxman laid out the case for the referral in an 18-page document -- prepared for Democratic members of the committee -- citing “seven sets of assertions” by Clemens that appeared to be “contradicted by other evidence . . . or implausible.”
In addition to the core issue of whether Clemens lied in his denials of using steroids and HGH, the letter and document cite concerns about his truthfulness on other points. They include his testimony that McNamee injected him with lidocaine and Vitamin B-12; that he never spoke to McNamee about HGH; and that he did not attend a party at Jose Canseco’s Miami home in 1998.
The bipartisan letter appeared to indicate that Waxman and Davis had resolved the wide divide during the hearing, in which Democrats largely challenged Clemens and Republicans generally confronted McNamee.
However, Davis issued a subsequent statement in which he appeared to chide Waxman for overstepping the bounds of the inquiry.
“Our referral focuses on the core question before the committee: whether Roger Clemens used steroids or other performance enhancing drugs,” Davis said.
“Some may want to ‘help’ the Department of Justice by characterizing evidence or packaging apparently contradictory quotes on other questions to help make a case for perjury. I don’t think that’s necessary.”
If the Justice Dept. decides to investigate, Davis said later, “I’m sure that McNamee’s statements will be appropriately scrutinized.”
Hardin said he was not surprised that McNamee was not included in the referral.
“I think Chairman Waxman would never have allowed that to happen,” Hardin said. “He is the man who apologized to an admitted dope dealer.”
Said Waxman: “I’m sorry he feels that way. I didn’t see any evidence McNamee lied.”
At the end of the hearing, Waxman said he wanted to apologize to McNamee, who obtained and provided steroids and HGH without a legitimate medical prescription, for enduring some harsh and “really unwarranted” comments from some committee members.
Mathew Rosengart, a former federal prosecutor and adjunct professor at Pepperdine Law School, said Clemens could be indicted within the 18-month term of a grand jury, given that Congress can provide depositions and other evidence to federal investigators. Each count of perjury carries a maximum prison sentence of five years, he said.
“The referral gives the Dept. of Justice a little bit of a push and makes it more likely a grand jury investigation will commence,” he said.
“If a grand jury is convened, given the referral from Congress and given that somebody lied to Congress, it would be more likely than not that government would seek an indictment.”
Katherine Darmer, a Chapman University law professor and former federal prosecutor, called the referral proper.
“If they didn’t refer this, it would look like they were giving favorable treatment to a successful athlete who is well-liked by some,” Darmer said.
“This has an even-handedness to it. He made so many blatant misstatements that contradict not only McNamee, who some people don’t think has any credibility, but Pettitte, who has no incentive to contradict Clemens.”
On Wednesday, the first day of the exhibition season, baseball clubs went about their business.
In Vero Beach, Fla., the spring home of the Dodgers, Torre said he could offer no conclusions about Clemens’ guilt or innocence, only melancholy about Wednesday’s developments.
“It just saddens me because he’s had a great career,” Torre said.
“He’s certainly a Hall of Famer for everything, the pitcher he was. It’s too bad.”
Even if Clemens were convicted of perjury, he would remain eligible for the Hall of Fame, said Jack O’Connell, secretary-treasurer of the Baseball Writers Assn. of America.
In Kissimmee, Fla., at the training site of Clemens’ hometown Houston Astros, the pitcher declined to speak with reporters about Wednesday’s events.
He did throw a few rounds of batting practice, offering a few farewell words as he drove away in his black Hummer: “See y’all tomorrow.”
Times staff writers Lance Pugmire in Los Angeles, Dylan Hernandez in Vero Beach, Fla. and Richard B. Schmitt and Richard Simon in Washington contributed to this report.