Despite new confession, McGwire faces no perjury threat from 2005
No. Perjury requires knowingly lying while under oath. McGwire followed his lawyer's advice by neither confirming nor denying that he used steroids. His opening statement set the tone: "My lawyers have advised me that I cannot answer these questions without jeopardizing my friends, my family and myself. I intend to follow their advice." He also repeatedly remarked, "I'm not here to talk about the past," even when that statement seemed unrelated to questions posed by members of Congress. McGwire's evasive performance may have been a public relations disaster, but he avoided committing perjury or any other crime.
McGwire originally sought immunity from criminal prosecution as a condition to testify. The immunity would have enabled him to implicate himself in criminal activity related to steroids without the threat of prosecution for that activity. The request, however, was denied by then U.S. Attorney General
McGwire eventually agreed to testify without immunity, but with a possible handshake deal with Waxman and Davis, the chairman and ranking member of the Committee on Government Reform, respectively, that he could skirt questions about his past by invoking his Fifth Amendment privilege. The privilege protects parties in a legal proceeding from disclosing information that they reasonably believe could be used in, or give rise to, criminal prosecutions of them. McGwire was concerned that admitting to steroids use would have constituted an admission of guilt under the Anabolic Steroid Control Act. Instead of expressly referring to his Fifth Amendment privilege, McGwire opted to say that he was "not here to talk about the past."
Unfortunately for McGwire, most members of the Committee were acutely interested in his past, and there was little either Waxman or Davis could do about it. Indeed, despite Davis's admonition to his colleagues that a House rule "protects witnesses and the public from the disclosure of defamatory, degrading or incriminating testimony in open Session," McGwire was repeatedly posed incisive questions by members of both parties, including Congressmen
If McGwire had denied using steroids -- that is, lie -- he would have set himself up for perjury charges. But keep in mind, under Title 18 of the U.S. Code (Section 1001), there is a five-year statute of limitations for federal perjury charges. That means that McGwire or any other witness from the March 17, 2005 hearing would need to face perjury charges by March 17, 2010. It is unclear whether the government would have had sufficient physical evidence to investigate and seek a grand jury indictment against McGwire; there does not appear to be a
Alternatively, if McGwire had admitted that he used steroids -- that is, told the truth -- he would have been subject to investigation by federal authorities as to which steroids he purchased, when and how he purchased them, from whom he purchased them and similarly probing questions. In theory, McGwire could have faced criminal charges under the Anabolic Steroid Control Act. While some might point out that no player who admitted to using steroids has been prosecuted for purchasing or using steroids, keep in mind that those players -- including
McGwire's admissions of steroids and subsequent cooperation with federal authorities could have impacted other players and the steroids scandal in general. For instance, it may have aided federal investigations into other players alleged to have used steroids, including
McGwire could have implicated his family and friends in participating in criminal acts if he purchased illegal steroids from them or if they aided and abetted his purchasing of illegal steroids. Alternatively, had McGwire purchased illegal steroids from criminal or nefarious types, he may have feared that divulging any sellers' names could have led to reprisal against his family and friends. In hindsight, these may seem like far-fetched, almost quixotic concerns, but at the time McGwire's counsel may have encouraged McGwire to pursue the least risky strategy.
Both players could refer to defamation law, which concerns damaging and untrue statements that are publicly made. Neither player, however, would likely prevail in a defamation claim, particularly since neither player has enjoyed widespread credibility on the topic of steroids.
Slander is the oral version of defamation, while libel refers to defamation by written or visualized material. A defaming statement must be egregious, as opposed to one that is merely insulting. Public figures, like McGwire and Canseco, also have the burden of showing that the speaker had "actual malice" (that is, knowledge or recklessness) in making a defaming statement. The truthfulness of a statement is almost always an absolute defense to defamation.
McGwire could contend that Canseco libeled him in his book,
For his part, Canseco could argue that by denying Canseco's assertions, McGwire slandered him, but such a claim would be similarly difficult. McGwire's denial of Canseco's assertions, while perhaps undermining Canseco's book, probably does not rise to slander, particularly when most people seemed to disbelieve McGwire. The statement would also have to have injured Canseco's reputation and exposed him to public ridicule, consequences which seem unlikely to be shown.
It's possible that the St. Louis Cardinals could have required, as a condition of McGwire's employment as team hitting coach, that McGwire publicly admit that he used steroids. It would have been a reasonable request. The Cardinals understandably would not want a coach serving as a media distraction, and had he not made his admission, McGwire could have become just that.
Probably not. Unless McGwire has information about those players and is willing to share it, McGwire's admission is limited in impact to him.