David Epstein
Friday January 18th, 2008

Late this week came the news that Brian McNamee's quest for immunity in his testimony to the congressional Committee on Oversight and Government Reform is not going as swimmingly as his lawyers had hoped. "[McNamee] wants to testify," says his lawyer Earl Ward, "and we're still trying to work out a solution that would allow him to testify."

According to Ward, even without immunity, McNamee might talk to the committee, and simply restrict his testimony to things covered in the Mitchell Report, for which the statute of limitations has passed.

On Thursday, Ward spoke with a committee staffer and was reminded how rare it is for the committee to grant a witness immunity. According to J. Keith Ausbrook, the Republican general counsel to the committee, the committee has not given immunity since April of 2003. In that case, the immunity was granted to William M. Bulger, then president of the University of Massachusetts. Bulger had already appeared before Congress in December 2002, and had invoked his Fifth Amendment rights in a hearing where he was questioned on the whereabouts of his brother, James (Whitey) Bulger, an F.B.I. informant who had disappeared years earlier after being indicted on charges of racketeering and murder.

Since then, witnesses have had to appear before the committee without immunity, and, as Mark McGwire proved, the resulting testimony, in certain circumstances, can be less than illuminating. Still, even if McNamee fails to get the immunity -- it requires a two-thirds vote from the committee, in addition to approval from the Attorney General and an order from a district judge in Washington, D.C. -- it is unlikely he will put up a McGwire-like blockade.

Ward says his client would simply confine himself to what is already in the public record. So one prevailing question is: What, exactly, beyond the statements in the Mitchell Report, does McNamee want to talk about that would lead his lawyers to request immunity?

"It's not things about Roger," says Ward. "But, again, [McNamee] was getting steroids and HGH from Kirk Radomski, and that's a crime, and I don't want him to come into Congress and admit to a crime and get prosecuted for it."

Theoretically, one reason why Congress might not want to give McNamee immunity is if the Department of Justice is still looking for evidence that could allow them to prosecute McNamee. Even if a congressional witness is granted immunity for testimony, the Justice Department can use information that is gathered without help from that testimony to prosecute the witness. So if, for example, the DOJ has alerted the committee that it still wants to seek information for a possible prosecution of McNamee, it might discourage the committee from granting immunity. The reason being that, if the Justice Department did, in fact, dig up something on McNamee, they would want to be able to prove later that they did it without the help of testimony that was given publicly and with immunity.

"Prosecutors can try to prove the evidence came from somewhere other than the testimony," Ausbrook says, "but if there was public testimony, that's hard to do...the evidence will be viewed as tainted."

Committee staffers could not comment on what the Justice Department has told them, but the they did confirm that discussions with the DOJ regarding the potential for granting immunity have been ongoing.

REMATCH

• The Clemens legal team Thursday added Washington, D.C. based attorney Lanny Breuer, who served as special counsel to President Clinton from 1997-99 during his impeachment hearings and trial. Ward said Friday that he used to litigate cases against Breuer in New York over 20 years ago, when he was a public defender and Breuer was an assistant district attorney.

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