ABC News has learned that Jeff Novitsky, the IRS agent who has spearheaded the federal investigation into the use of steroids by professional athletes, has asked to speak to former baseball player Jose Canseco about pictures that have emerged allegedly showing Roger Clemens at a party that Clemens swore, under oath in his congressional deposition, that he did not attend.
The photos, if verified, could put Clemens in legal jeopardy.
Congress may decide as early as this week whether to ask the Department of Justice to formally investigate whether Clemens made false statements to congress. House staffers have prepared several different drafts regarding a possible referral, but a final decision has yet to be made.
A lawyer for Canseco, Robert Saunooke, said his client intends to "fully cooperate," and has tentatively agreed to meet with Novitsky in San Francisco in the next couple of weeks.
In his sworn deposition, Clemens denied adamantly ever attending the 1998 party held at the house of his then-teammate Canseco. He was asked if he had been at Canseco's house at any time around the June 9 party, and he replied "no."
Clemens' initial denial of having attended the party had been an important part of his lawyers' attempts to undermine the accuracy of the Mitchell Report, the explosive findings of an investigation led by former Sen. George Mitchell, that accused Clemens of taking steroids. The Mitchell Report claims that Clemens was at the party.
Friday evening, Rusty Hardin, a lawyer for Clemens, released a statement saying he had been contacted earlier in the month by a man who said he had pictures of Clemens and his son together at the party. According to Hardin, the man told him that the pictures show Clemens in the pool with the man's then-11-year-old son. According to Hardin, the man said he'd call back but never did.
Richard Emery, a lawyer for Brian McNamee, Clemens' former trainer, who has said that he injected Clemens with performance-enhancing drugs, said that he, too, learned about the existence of the photos. In an interview with ABC, Emery said he told federal prosecutors and congressional investigators about the existence of the photos last week. Emery was told one picture was of the boy in a pool with Clemens, and the other was of the boy and Canseco.
Contacted by ABC News, the man who allegedly owns the photographs, and who wished to remain anonymous, said he couldn't comment because he was under subpoena from the federal government. Congressional sources tell ABC News that such a subpoena did not come from Congress.
"It is impossible for us to comment on the photograph itself because we haven¹t seen it," said Hardin.
Hardin had secured a sworn affidavit from Canseco and submitted it to Congress. In the affidavit, Canseco said that he held a party on June 9, but that he was "disappointed" that Clemens "did not attend." The affidavit goes on to say that the statement in the Mitchell Report, saying that Clemens was at the party, was "absolutely false."
Saunooke said he is suspicious of the alleged photographs, which he has not seen. He added that his client believes the photographs could have come from a different event on another date.
Although it's a small detail in the Mitchell Report, the Clemens team initially seized on the fact that Mitchell had gotten the fact wrong, in an effort to impugn the senator's other, larger, findings.
During Clemens' closed door deposition, another one of this lawyers, Lanny Breuer, said, "We were able to establish, and will be able to establish categorically, without question, that our client wasn't there." The lawyers gave the committee receipts from a golf outing that day, and also provided an affidavit from Canseco, saying that the slugger was disappointed that Clemens had not attended his party.
But after the deposition, the Clemens' team was contacted by the father. The Clemens camp then changed its story.
At his nationally televised hearing, Clemens acknowledged that he may have stopped by the party to drop off a family member. He testified, "Could I have gone by the house later that afternoon and dropped off my wife or her brother-in-law, the people that golfed with me? Sure, I could have."
McNamee has suggested at times that Clemens may have gotten steroids from other people present that day at the party.
Refuting those claims at his hearing, Clemens said, "I know one thing — I wasn't there huddled up with somebody trying to do a drug deal. That I know for sure."
Emery said, "I haven't seen the photo but I believe it exists. I draw the obvious conclusion. But it only corroborates totally believable testimony from Brian."
If the claim is true, legal experts will debate whether federal prosecutors could claim that Clemens lied about the party, pointing to the fact that a picture in a pool is not indicative of dropping off a family member.
With the starkly different stories between Clemens and McNamee, much of the debate has centered on the credibility of the two men.
UCLA law professor Laurie Levinson says that the half-sentence Clemens uttered at the hearing, in which he acknowledged that he might have been at the party, might work in the pitcher's favor. She said, "He could come back and say there was some confusion, something like, 'I thought they were asking me if I was there doing drugs.' Legally, it comes down to whether the prior statement was actually false, or was just incomplete. It goes to intent."
Congress is still considering whether to refer the case to the Department of Justice for further investigation. That decision could come as early as this we