David Epstein
Tuesday January 29th, 2008

With Chuck Knoblauch having agreed to meet with the congressional Committee on Oversight and Government Reform, the full batting order is set for the Feb. 13 congressional hearing. On Wednesday, Andy Pettitte will meet privately with committee staff members, with Roger Clemens, Brian McNamee, Knoblauch and Kirk Radomski heading to Washington D.C. in the following days.

And then comes the main event.

The last time that baseball players appeared before the committee was in 2005, and "we couldn't write drama like that," said one congressman who recalled Mark McGwire repeatedly refusing to talk about the past, Sammy Sosa using an interpreter and Rafael Palmeiro wagging his I-didn't-do-it finger at legislators, only to fail a drug test months later. (Note to future witnesses: keep fingers in pockets; your elected officials haven't forgotten about Palmeiro's theatrics). Will Feb. 13 provide another performance for the ages? We'll have to wait and see. That's just one of the many questions about the hearing.

Why is Congress bothering with another hearing?

According to committee members the Feb. 13 hearing will serve two important functions (beyond providing dramatic headlines): First, Congress is hoping for insight into player/trainer/clubhouse employee relationships. "I can't remember a lot being said in the Mitchell Report about how trainers operate," says Rep. Elijah Cummings (D-MD), who wants to hear more on that topic from McNamee. "I wonder what the code of ethics is for these trainers, and if we need to put a greater spotlight on them." Second, some members insist that evaluating the truthfulness of Clemens and McNamee will bear on the credibility of the Mitchell Report as a whole. The Mitchell Report "does little good if we are not confident in the honesty of his main sources," says Rep. Tom Davis (R-VA), the committee's ranking minority member. "The February hearing will examine the claim that the evidence relating to Roger Clemens is false. Reaffirming the evidence in the Mitchell Report will give the public greater confidence in the conclusions."

What happens if Clemens or McNamee lies?

Congress has sent a message that lying to reporters is a simpler affair than fibbing on the Hill. The Jan. 15 hearing, which featured Bud Selig and Donald Fehr, opened with the announcement that Astros shortstop Miguel Tejada would be investigated for making false statements to congressional investigators. Says Cummings, "considering the precedent that has been set with regard to Tejada, and knowing the committee like I think I do, I think that if [the committee] finds a situation similar to what is suspected in the Tejada case, that [Clemens or McNamee] will find themselves referred to the Justice Department."

All of the Feb. 13 witnesses have been asked to give statements to the committee prior to the hearing. The witnesses have the choice of submitting a sworn deposition or a transcribed interview. The difference is that a deposition would be given under oath, whereas an interview would not. However, it is a crime to lie to Congress, whether under oath or not, so the only practical difference is that an interview transcript could immediately be made public, while a deposition could only be made public by a vote of the committee or an agreement between the chairman and ranking minority member.

Why was McNamee asking for immunity if he plans to tell the truth before Congress?

Clemens' lawyer Rusty Hardin termed it a "delicious irony" that McNamee would call Clemens a liar and then ask for immunity himself. Really, though, there is no irony, because no immunity deal holds if a witness lies. According to his attorneys McNamee was asking for immunity because he wanted to tell the truth, and the truth includes the admission of crimes. McNamee "was getting steroids and HGH from Kirk Radomski," says his lawyer Earl Ward. "That's a crime, and I don't want him to come into Congress and admit to a crime and get prosecuted for it." As the hearing date nears, it appears less likely that McNamee will be granted immunity, but his lawyers do not expect that to greatly impact his testimony. "The things in the Mitchell Report," Ward says, "are beyond the statute of limitations." Ward says he does not expect McNamee to invoke his Fifth Amendment rights at the hearing.

Why wouldn't Congress give McNamee immunity?

Immunity is rarely granted. The last time the Committee on Oversight and Government Reform gave a witness immunity was in 2003, when testimony involved an ongoing criminal investigation. One reason that Congress might deny McNamee immunity is if the Justice Department has made it clear that it is still investigating McNamee. If McNamee were given an immunity deal the Justice Department could still prosecute him if it obtained information about his crimes independent of his testimony. As a general rule, though, it is very hard for a prosecutor to prove that information was not gleaned from immune statements if the testimony was given publicly, and the evidence is liable to be thrown out.

So why bother with depositions and interviews prior to the hearing?

"So that you get other evidence about other witnesses," says J. Keith Ausbrook, Republican general counsel to the committee, "and so members can focus their questions at the hearing and not run through a lot of preliminary stuff."

Who conducts the depositions and interviews?

Attorneys and staff members who work for the committee.

Will the questions asked in the depositions and interviews be different from those that Congress asks in the Feb. 13 hearing?

It's likely that many of the questions will be the same, because committee members want to know ahead of time what witnesses will say at the hearing. That information helps staffers put together reports for committee members so they can ask pointed questions at the hearing. However, members only have five minutes apiece to ask each witness questions, so there will certainly be details that they do not have time for but which can be covered in depositions. Also, as Ausbrook notes, committee staffers who take the depositions will want to ask witnesses questions about other witnesses. According to Cummings once all the depositions are gathered, if there are conflicting statements, staff members will inform members about the conflicts and perhaps propose questions for the hearing that highlight factual disagreements.

When will we find out what was said in the depositions and interviews?

That's unclear. If a witness opts for a transcribed interview, we might find out soon; otherwise we might not find out at all (assuming the depositions aren't leaked) -- unless the witnesses discuss it. The committee is not allowed to disclose the contents of a deposition without the required approval (so far the committee has not decided whether to make these depositions public), but the witness who was deposed can talk about it all he wants. Now that the date of Clemens' deposition/interview has been moved back from Jan. 26 to Feb. 5, Andy Pettitte will be the first witness to meet with Congress, on Jan. 30. If Pettitte wanted to, he is free to tell Clemens and anyone else he chooses about his statements after he gives them.

What tapes are being reviewed by Congress?

The committee has transcripts of at least three tape-recorded conversations:

1) The Jan. 4 phone conversation between Clemens and McNamee that was played for the world at Clemens' press conference on Jan. 7.

2) On Dec. 12, the day before the Mitchell Report was released, McNamee, in what one of his lawyers called an "incredibly foolhardy" decision, agreed to meet with investigators sent by Clemens' lawyer Rusty Hardin. McNamee spent hours detailing his conversations with federal and Mitchell Report investigators, apparently in an effort to warn Clemens of what was coming. Hardin, when he filed a defamation lawsuit on behalf of Clemens, used an excerpt from that conversation to suggest that McNamee had been pressured by federal investigators to give Clemens up.

3) On Dec. 5 McNamee spoke with Jim Murray, a representative from Hendricks Sports Management, the agency that represents Clemens. According to Richard D. Emery, one of McNamee's lawyers, McNamee discussed with Murray what he told federal and Mitchell Report investigators. (Emery has not heard the tape, but McNamee described to him his recollection of the conversation, which McNamee did not know was being recorded.) Emery emphasized that McNamee's statements to Murray were consistent with his statements in the Mitchell Report.

Why did Clemens' agent, Randy Hendricks, issue a 49-page report on Clemens' statistical progression?

Clemens is engaged in a public fight, with his reputation at stake. In what George Mitchell has dubbed "the steroids era," all transcendental achievements are called into question by fans, particularly those of players over 30 years old. Thus it makes sense that people would point to Clemens' late-career renaissance as a potential sign of cheating, and it also makes sense that, in an effort to protect his reputation, Clemens' team would look to justify his production. The report says that Clemens effectively mixed in a split-finger fastball in his later years, even while his heater was cooling off, and that some of the slumps he bounced back from were caused by injuries, not senescence. If committee member Rep. Mark Souder (R-IN) is any indication, this might be a hard argument to push. After the first hearing on Jan. 15, Souder said that he perceives greater variation between the early and late stages of Clemens' career than he does in the career Barry Bonds.

Who is representing Clemens?

Clemens' main attorney is 66-year-old Houston-based Rusty Hardin. Hardin, a former prosecutor, has made something of a niche out of defending Texas athletes. Among his victories for athletes: Warren Moon was acquitted on charges of spousal abuse; drunken driving charges against Rudy Tomjonavich were dismissed; Calvin Murphy was acquitted for sexual assault of a child; Steve Francis was acquitted of driving while intoxicated; Wade Boggs won a civil trial after he was accused of assaulting a flight attendant.

Clemens' newest lawyer is Washington, D.C.-based Lanny A. Breuer. Breuer represented former president Bill Clinton during his impeachment hearings and has experience in multiple congressional investigations. He helped advise Halliburton/KBR in congressional investigations and hearings, and prepped witnesses to appear before the House Committee on Oversight and Government Reform, the same committee that will question Clemens.

What's up with Chuck Knoblauch?

Last week the congressional committee said that Knoblauch had not responded to invitations to attend the hearing, so the committee issued a subpoena for him, to be served by U.S. marshals. But on Monday, Knoblauch told the committee that he was willing to meet, and so the subpoena was withdrawn. If Knoblauch hadn't agreed to testify, he might have been held in contempt of Congress. In that case he would have been guilty of a misdemeanor punishable by between one and 12 months in prison and a $100-$1,000 fine.

What about the witnesses other than Clemens and McNamee?

Radomski, the former Mets clubhouse attendant who provided steroids to dozens of players, pleaded guilty in April to one felony count of distributing anabolic steroids and one felony count of money laundering. Along with McNamee, Radomski was the major source of names contained in the Mitchell Report.

As part of his plea deal Radomski, who faces up to 25 years in prison when he is sentenced on Feb. 8, agreed to cooperate with Mitchell's investigators in the hopes of winning leniency in his sentence. Radomski, through his lawyer, has refused to make public comments in the wake of the Mitchell Report. After his sentencing, though, the muzzle is off. One of the reasons the committee pushed the second hearing back from Jan. 16 to Feb. 13 was so Radomski will be able to speak freely.

Knoblauch has agreed to meet the committee, but it's still not clear what he might say. In the Mitchell Report, McNamee said he injected Knoblauch with human growth hormone in 2001. In his only public comments on the Mitchell Report, Knoblauch told the New York Times that he has "nothing to defend" and "nothing to hide at the same time."

Pettitte admitted to using human growth hormone after the Mitchell Report was released, insisting that he did so only to return from an injury. Pettitte's admissions has been widely viewed as lending credibility to McNamee's statements in the report. Pettitte has not publicly commented on the allegations made against Clemens, and Pettitte's lawyer would not comment on any aspect of the upcoming hearing, but a committee staff member says that Pettitte will likely be asked about Clemens when he meets with the committee.

Whatever happened with the defamation suit that Clemens filed in Houston against McNamee?

Initially there was speculation that the suit was filed to give Clemens an excuse to bail on Congress, but in all of his public statements Clemens has affirmed his intent to testify. McNamee's legal team has until Feb. 11 to respond to the lawsuit.

In what order will the witnesses testify on Feb. 13, and will Clemens and McNamee have to sit next to one another?

According to a committee staff member the order of testimony and seating arrangements will be worked out as the hearing nears. However, there is only one witness table in the hearing room, so it's likely that the witnesses will have to sit together.

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