Could Clemens Be Charged With Perjury?

Feb. 14, 2008 — -- Roger Clemens' performance Wednesday is being debated in the court of public opinion, from sports bars to office cubicles to living rooms around the country.

But what really matters for the pitching ace is whether prosecutors at the Department of Justice take an interest in the discrepancies and contradictions in his account, which were highlighted by members of Congress during the dramatic hearing. At least six FBI agents and IRS investigator James Novitsky, who spearheaded the probe into Barry Bonds' use of steroids, attended the hearing, paying close attention to the exchange.

Former federal prosecutors and defense lawyers say that Clemens might be prosecuted for perjury and obstruction of justice. The Justice Department could launch a criminal investigation with or without a referral from the House and Government Oversight Committee, whose chairman, Henry Waxman, D-Calif., lashed out at Clemens for inconsistencies in his account.

Clemens claims that he has never used any performance-enhancing drugs. A perjury charge could be based on the fact that his account was contradicted by former teammate Andy Pettitte and former trainer Brian McNamee.

Among other inconsistencies that may rise to the level of a perjury charge: Three times Clemens denied discussing human growth hormone with Pettitte and then suddenly reversed course and admitted discussing it. Also Clemens said that Pettitte had misunderstood his description of HGH use as his own, when in fact Clemens claims he was describing his wife's use of the hormone. (That conversation preceded by a few years her actual use of HGH.)

Clemens could also be charged with obstruction of justice or witness tampering when it was revealed at the hearing that he had reached out to his former nanny before she talked to congressional investigators looking into her memory of whether the hurler attended a barbecue thrown by Jose Canseco.

Clemens' lawyers denied that possibility in the strongest of terms and objected to Waxman's questions about whether Clemens had contacted a potential witness.

"Roger Clemens certainly did not commit perjury,'' Rusty Hardin told reporters yesterday. "No sane man would subject himself to that unless he was telling the truth."

Others disagree. "He did terribly -- what killed him was the fact that [Andy] Pettitte totally verified the credibility of McNamee," said Katherine Darmer, a former federal prosecutor and current law professor at Chapman University.

"Looking at it from a lawyer's perspective," she added, "they could go after him for perjury and witness tampering. When you can't pursue someone for the underlying bad thing, they fall back on perjury and witness tampering. Look at Barry Bonds, Scooter Libby, Martha Stewart."

Darmer said she thought that McNamee's reputation as a liar would not prevent federal prosecutors from using him as an effective witness.

"You get bad guys by using bad guys," she explained. "If you get a guy who shot someone in their basement, you have to find somebody else involved in the wrongdoing, not Mother Theresa. I was impressed with him as a corroborating witness."

Clemens is more likely to be charged with perjury than McNamee, says John Burris, a lawyer who defended Bonds.

"They very well could indict him," he says. "Because it's a sworn deposition. If in fact, it was determined that he lied on the material questions, those are criminal offenses."

Burris says that McNamee may not be the ideal witness but that he doesn't seem to have any reason to lie about Clemens. "What hurts Clemens more than anything else is that these two people [Pettitte and McNamee] contradict him. They were all friends. Why would McNamee lie about Clemens and be truthful about the others?" he said, referring to Pettitte and former teammate Chuck Knoblauch.

Clemens could be in a similar situation to his former client, explains Burris. "The similarity is that they are both big-time personalities and they are both in denial. One has been charged and one hasn't been. If Clemens had gone before a grand jury and repeated his account, that would be comparable to Bonds."

Another precedent for the case is that of Miguel Tejada, whom the committee believed had lied in its earlier investigations. It's asked the Department of Justice to investigate.

Tejada's lawyer Mark Tuohey declined to comment on the Clemens hearing or his client. He did say that a recent report that Tejada, a native of the Dominican Republic, could be deported was "pure speculation."