
By John Jeansonne
January 13, 2008
In the evidence-free zone of the ongoing Roger
Clemens-Brian McNamee duel for believability, someone apparently
has resolved to invoke the insanity offense.
Legal experts are in full agreement with Northeastern University
law professor Roger Abrams' cardinal rule that "you don't
lie to Congress." Yet when Clemens and McNamee make their
Capitol Hill appearances under oath, now scheduled for Feb. 13,
Abrams is among those who fully expect that either Clemens or
McNamee will lie to Congress.
"We know what's on the line," Abrams said in a telephone
interview, alluding to consequences that range from ruined reputations
to possible jail time beyond the steroid-use and steroid-peddling
accusations. "But whoever is going to lie to Congress, there's
the alternate reality he'd have to face if he changes the story
now."
A change would mean McNamee acknowledging he lied to federal agents
about injecting Clemens with performance-enhancing drugs. Or Clemens
admitting there were illegal substances, not the painkiller lidocaine
and vitamin B-12, in McNamee's injections (even in the absence
of a third ear growing out of Clemens' forehead).
"They are right there, sitting on the horns of a dilemma,"
Abrams said, "and when you're sitting on horns ... it's uncomfortable."
The squirm quotient rose Friday, when disgraced Olympic champion
Marion Jones was sentenced to six months in jail after four years
of lying about her steroid regimen. And, according to a Baltimore
Sun report, Clemens was invited to a private House committee interview
as early as this week.
Abrams cautioned against a rush to judgment and called the source
of McNamee's accusations, the Mitchell Report, "doomed from
the start" because it lacked subpoena power and failed to
provide the accused an opportunity to face their accusers.
Then again, "the Mitchell Report is a gift that keeps on
giving," Abrams said.
It has turned baseball's hot stove into a runaway conflagration
of offseason drama. For providing a courtroom/ medical thriller
with pace, plotting and suspense, it beats having to cross the
striking TV writers' picket line to find good-vs.-evil entertainment.
In fact, the Clemens-McNamee joust is ideal material for one of
those mock news shows on cable, perfectly fitting the Stephen
Colbert's definition of "truthiness" - not truth, but
the truth someone wants to exist.
Clemens or McNamee clearly has been playing in a fantasy league
for so long that there may be no turning back. Reputation management
expert Mike Paul argued that Clemens' defamation suit against
McNamee - still not served as of Friday - and McNamee's threatened
countersuit "are PR spin" leading up to the D.C. hearings.
"In the court of law, you're trying to create doubt,"
said Paul, the self-styled "Reputation Doctor." "A
lawyer's audiences are the judge and jury, and he wants to win.
In the court of public opinion, you lean on the truth, especially
if your client has to apologize for something damaged. In my world,
the best thing is for a client to rebuild his reputation for life,
even if that means going to jail."
Legalities and possible lawsuits aside, Paul praised the Mitchell
Report's intention to "clean up the sport." He wouldn't
name names, but Paul said he has three clients on the Mitchell
Report list and is counseling the courage of longtime Clemens
friend and teammate Andy Pettitte for "putting his ego at
the door and saying, 'I have to 'fess up'" to HGH use.
"Deciding to take steroids is a pact with the devil,"
Paul said. "You don't want even your wife or kids to know
it because you don't want the stress that they might talk. The
pact is so deep that you have to lie to yourself the rest of your
life."
Thus, the Clemens-McNamee likelihood is "for more PR wars,"
said Manhattan attorney Norman Samnick, former general counsel
for the Cosmos soccer team who dealt with drug use among players.
Because there is no cross-examination in congressional testimony,
"it could work in the favor of the guy not telling the truth,"
Samnick said, so even if "somebody eventually caves,"
that might come only at a jury trial (which might never happen).
It might be to Clemens' advantage that he has "more to lose
in the court of public opinion ... deeper pockets [than McNamee]
and more used to the spotlight," Samnick said. But so far,
"Roger has done so poorly" in his public appearances.
"That's what happens when you have a lawyer named Rusty.
He'd be better off with Rusty Staub."
Abrams, meanwhile, judged that Clemens already is "done for.
Even if he wins a suit against McNamee, and I think he could,
it will never clear his name."
Well, maybe not never. In researching his book, "The Dark
Side of the Diamond," dealing with gambling, game fixing,
drug abuse and violence in baseball and due out next month, Abrams
came across a Washington Post report that baseball's first pitcher
to win 300 games, James Francis "Pud" Galvin, took testosterone
shots while playing for the Pittsburgh Alleghenys (now Pittsburgh
Pirates) in 1889.
Clemens' hope? Seventy-six years later, an oldtimers committee
voted Galvin into the Hall of Fame.
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