David Epstein
Monday January 14th, 2008

It's hard to gauge the impact that the playing of a 17-minute, recorded phone conversation between Roger Clemens and Brian McNamee during Clemens' press conference on Jan. 7 had on public opinion. But it doesn't seem to have impressed members of the House Committee on Oversight and Government Reform who will hear testimony from the two men next month. SI.com interviews with seven committee members suggest that the Congressmen and women who will be grilling Clemens and McNamee found the recording, at best, to yield little informational value. At worst, they saw it as tasteless.

Committee member Mark Souder (R-IN), a co-founder of the Congressional Caucus on Drug Policy, wonders "why in the world" Clemens' played the conversation tape. Souder called the move "perhaps legal, but not really ethical...[McNamee sounds like] a guy who was beaten down, who obviously respected Clemens," says Souder, who was also put off by Clemens' handling of reporters' questions at the press conference. "He says, 'Well, I didn't play my career to be in the Hall of Fame,'" Souder says. "Sure he didn't. He played it for [millions of dollars], but presumably you still want to be in the Hall of Fame. Why not just use a little tact?"

• Souder, a self-described right-wing conservative, has spent much of his political career drafting various drug policies, and could be a tough inquisitor come Feb. 13, because of his long-running fervor for fighting the spread of illegal drugs ("These guys are emulated down the line," he says), his frustration with baseball's version of omerta ("It seems to be, in a drug dealer's world, a code of silence") and because he counts himself a huge baseball fan ("I want to know when a [drug] test catches somebody we drafted in our fantasy league").

While Souder is interested to hear from Clemens and McNamee, he agreed with the other committee members interviewed that Tuesday's hearing, with Bud Selig, Donald Fehr and George Mitchell, will go further in determining whether baseball can fix its own drug problem without Congressional intervention than the Feb. 13 hearing, at which Clemens, McNamee, Chuck Knoblauch, Andy Pettitte and Kirk Radomski are expected. In fact, many of the members say they see little utility in having the players testify at all.

• Several committee members expressed little patience for any talk in Tuesday's hearing about the difficulties that collective bargaining might present in crafting more stringent drug policies. "I don't even feel like it's an issue where you have to have extensive collective bargaining," says Christopher Shays (R-CT). "It seems to me the commissioner says, 'this is a minimum standard...and if they don't like it, they can strike.' Then let the public decide if the standard should be lowered."

• Two committee members added that they want assurance that, if a satisfactory drug policy is collectively bargained, it can be altered quickly enough to keep up with new drugs and masking techniques.

• Several of the committee members interviewed say they want to hear a lot more about the dynamics of the trainer-athlete relationship, whether it be a personal trainer hired by a player, or a certified athletic trainer working for a team. "I don't remember a lot being said [in the Mitchell Report] about how trainers operate," says Elijah Cummings (D-MD), the other co-founder of the Congressional Caucus on Drug Policy. "I want to know how we can have more say with regard to trainers. If it's a private trainer, maybe it's impossible to stop them from developing a relationship, but I still think we really have to look at that."

• Every committee member interviewed stressed the importance of Major League Baseball sending a strong message to young athletes about drug use, and a few want to hear ideas for specific remedial action. "I'm hoping baseball will say, 'For any damage we've done with placing in the mind of young people that it's O.K. to do steroids,'" says Cummings "we're going into schools to talk to coaches and students. Then we will have come 360."

Initially the hearings were scheduled to be back-to-back, on Jan. 15 and 16, but the players' hearing was rescheduled to Feb. 13 to allow Kirk Radomski to be sentenced and the committee to collect more information, according to a statement released by the committee.

According to a committee staff member, prior to Clemens' post-60 Minutes press conference when he announced that he would appear before Congress, the committee had not received an official RSVP from any of the players invited. Moving the hearing back will allow the committee to obtain depositions from the witnesses, and to subpoena any witnesses and materials that are deemed necessary for committee members to formulate their questions.

As part of that information gathering, tapes of the conversation that McNamee had with private investigators sent by Clemens' lawyer may be requested. In that conversation, which occurred the day before the Mitchell Report was released, McNamee discusses his interviews with Mitchell and federal investigators. Though committee members say they are not looking forward to wading through the morass of information to figure out whether Clemens or McNamee is being honest, some members feel that the committee must try to parse the truth because the Clemens/McNamee saga could be an important measure of the credibility of the Mitchell Report as a whole. McNamee, along with Radomski, was one of two major sources of player names in the report, and if it turns out that he is telling the truth, committee members say, it would vouch for the accuracy of the report, or the opposite if it turns out that he lied.

On Sunday, ESPN.com reported that Clemens' lawyer, Rusty Hardin, may resist turning over the tape of McNamee talking to his investigators. Hardin would not comment on that specifically, and lawyers not affiliated with the situation speculated that Hardin may tell the committee that he does not want the tape to be public prior to the discovery stage of the defamation lawsuit that he filed on Clemens' behalf against McNamee.

McNamee's lawyer Earl Ward has publicly encouraged Congress to ask for the tape, saying that the investigators tried to get McNamee to recant his story, but that he would not. J. Keith Ausbrook, the Republican general counsel to the committee, says that the committee can subpoena any information it deems necessary, including the tapes. "Everything is on the table," Ausbrook says. "We want to get a whole view of the evidence and the landscape."

In the meantime McNamee's lawyers have been trying to work out an immunity deal with the committee prior to his testimony. In order for him to have immunity -- given that he tells the truth -- McNamee would have to be compelled by the committee to tell his story in Congress. Because the Fifth Amendment prohibits an individual from being forced to testify against him or herself, McNamee would be given immunity with respect to self-incriminating statements if he is forced to testify. If he were to testify voluntarily, McNamee would not have immunity, and would instead have the option to invoke his rights under the Fifth Amendment when it came to making statements that could result in him being prosecuted. McNamee's lawyers were confident last week that the committee would give the two-thirds vote required to compel McNamee's testimony.

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