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Saturday, December 15, 2007
Bonds and Clemens, Distinctions and Differences

I have not yet written about the Mitchell Report at length; I am working on a longer piece for FindLaw for next week (in between showing my daughter her first snowfall) and will link to that. I did want to jump in quickly on the comparisons between Barry Bonds and Roger Clemens. The two now are inextricably linked forever in baseball history--the greatest pitcher and the greatest hitter of this generation both used performance-enhancing drugs. And both experienced similar late-career resurgences and high-level performances past the age of 40--although we now have evidence that both were drug-enhanced.

Michael noted a post by Paul Butler at BlackProf arguing that the charges against Bonds should be dropped, in light of the revelations about Clemens, that this is another example of racial inequality in the way the criminal justice system handles drug crimes. And the disparity of treatment between Bonds and Clemens has been a recurring theme in the blogosphere.

I want to disagree up to a point.

I agree that we (the press, the fans, etc.) were much more suspicious of Bonds's late-career revival and body changes than Clemens's--whether for reasons of race, non-New-England-based love of Clemens, dislike of Bonds personally, or a combination of all four.

But I reject the notion that the federal government is acting in a racially biased fashion if it continues to prosecute Bonds in light of the revelations about Clemens. Bonds is not being prosecuted for using steroids. He is being prosecuted because, having (allegedly) used steroids, he was a material witness to a grand jury investigation of the producers of PEDs (BALCO) and, testifying under a grant of immunity, he lied to the grand jury about his steroid use.

This is not a distinction without a difference. If Brian McNamee (Clemens's former trainer and his purported steroids source) is prosecuted for distributing steroids, Clemens testifies and denies using steroids in the face of what we now know, and the government does not, at least, investigate Clemens for perjury and obstruction of justice--then I will agree that something might be amiss. On the other hand, if MLB punishes Bonds for using steroids and does not punish Clemens, it might suggest some racial bias. Failing either of those two situations, Clemens and Bonds are not similarly situated.


The only thing that troubles me is if a named player tries to sue for either libel or slander (the latter seems to be coming up as regards the naming of Clemens), the bar is raised so high that the player(s) have nearly no hope of clearing their name. Fading into the background doesn't seem to work either.

Or in other words:

>> "When did you stop beating your wife/significant other?"
How do you prove a negative (i.e. no testing, legal use until a certain year [steroids OTC outlawed in 2004 according to another post], etc.)? ; and,

>> "[Which office] do I go to get my reputation back?" (Reagan's Labor Secretary Ray Donovan, on the day in 1987 that he was cleared by a jury of fraud and larceny charges).

Anonymous Anonymous -- 12/15/2007 11:49 AM  

First, it should be pointed out, neither Bonds nor Clemens ever tested positive for steroids. Second, it is naive to suggest race has nothing to do with the prosecution of Bonds. The apt comparison is not to Clemens but to McGwire, the great white hope who saved baseball and who had a fraction of the skills of Barry Bonds. He testified under oath before Congress, was asked if he took steroids, refused to answer, and was not pressed. But for this Justice Department to prosecute Bonds for perjury, when the former attorney general himself was less than candid when he testified before congress is obscene. Will the President commute the sentence of Bonds like he did for Libby who was convicted of perjury, although not about something as important as baseball, just about matters which led the country into an unjust war.
Alan Milstein

OpenID amilst -- 12/15/2007 3:08 PM  

I think there are some significant differences in how the Government treated Clemens and Bonds. The Government choose to prosecute Barry's trainer and thus attempt to set get Barry to ether admit his use to a Grand Jury or set a purjury trap for Barry before the Grand Jury by denying only him access to the evidance of his use. On the other hand the Government is choosing to not prosecute Clemens' trainer (but instead have him cooperate with Mitchell's investigation). Thus the government is not attempting to get Clemens to testify before a Grand Jury without access to the evidance against him as the did Bonds. The government is not requiring Clemens to either admit his use or be subject to the risk of purjury changes as the government required Bonds to do.

Bottom line, it is not just Baseball, the Media, and the Fans that have treated Clemens and Bonds differently. The government is every bit as guilty of this discrimination as well.

Anonymous giantsrainman -- 12/15/2007 5:47 PM  

First, I do not care that neither Bonds nor Clemens has tested positive; a positive test is not the only evidence that can establish that someone used steroids.

Second, I agree that the members of the House Committee screwed up by not pushing McGwire to either answer questions or actually assert his 5th Amendment privilege on pain of Contempt charges. But that likely is more a product of the disorganized, meaningless circus that was those hearings than the color of McGwire's skin. In any event, the decision to pursue Bonds was made by an AUSA (and his supervisors) in San Francisco; any contempt charges would have to have come from the House itself as a starting point. So the decision makers in each are not necessarily the same.

Third, and relatedly, I reject the idea that the US Attorney in San Francisco somehow lacks the legal or moral authority to pursue criminal charges, including charges for perjury, because Alberto Gonzales, et al., lied and/or broke the law. Again, it is up to Congress to initiate a process if it believes Gonzales perjured himself (a question which is beyond the scope of this forum).

Finally, it may be that the treatment of Bonds vis a vis McGwire reflected racial bias. Have not really thought about it and I know others have. I was responding here only to the argument that Bonds no longer should be prosecuted for perjury because Clemens also used steroids.

Blogger Howard Wasserman -- 12/15/2007 8:46 PM  

One more difference (of which I am reminded by Jayson Stark here:

McNamee and BALCO are not at equivalents. Bonds's version of McNamee (personal trainer cum hanger-on) is Greg Anderson. And the government pushed Anderson to make a deal and talk, just as it did Anderson. The difference: McNamee talked, Anderson would not talk and was willing to go to jail.

Blogger Howard Wasserman -- 12/15/2007 11:13 PM  

I read your blog everyday thanks to my trusty RSS feed and for the most part I agree with your articles, however here I've found that your misguided in the execution of the law. In 2004, Bush in his 2004 state of the union said that he wanted to get steroids out of baseball. One has to wonder why Bonds and not all parties have been chosen to be singled out and been given the option, out yourself or be outed through prosecution. That is essentially the fault that I and many find wrong, that Bonds not Clemens, McGuire, etc, etc, was given that ultimatum.

Basically, people have a moral dilemma with the Bonds vs. Clemens debate. Yes we understand that the law has only the morals of the wording in which its written, however the government is supposed to express the will of the people, and by openly comparing this case against other high profile cases that the federal government has prosecuted under this administration, one has to wonder if this case truly serves in the best interest of the people. Really, is lying about using steroids worse than outing a CIA agent. Or is lying about using steroids worse than abusing stock options. Rationale people would say NO.


1.) Bond's grand jury information was leaked to the press, and the one's who used that grand jury information got off scot free while making millions of dollars with their book. What other situation do you know where people who aid in the leaking of grand jury testimony serve no punishment.

2.) The government could have easily haulted the sale of the book with an injunction as it affects an on going trial that could aid in public perception in a jury based case. But no, they didn't.

3.) There are many reasons for Bonds' trainer not to talk, and being a lawyer yourself you should understand the benefits and problems that arise in talking.

4.) See Amilst's comments on McGuire

5.) Mitchell was able to get information about Bond's trainer without any subpoena power, which one has to presume the government had this information well before hand and probably at the same time they knew about Balco.So then why not prosecute Clemens's trainer, and make Clemens go on the stand in the same fashion in which Bonds' trainer was.

6.) Really, can someone prove that they knew that they were no taking something. There are thousands of legal substances that you can take right now that would improve your performance, so one can take a performance improving substance without the substance being illegal or deemed steroids.

6b.) Victor Conte, who now other than Canseco has told the truth the entire time. And he even says that he has know knowledge of giving Bonds HGH. So if Bonds and Conte both say that Bonds did not knowingly take steroids, what third party is there that says otherwise.

7.) The point that the article in which you linked to was trying to make was the unfairness of the law and how to roughly equal parties are treated differently over race. Certainly it has been shown in the media and government and you would be NAIVE to think otherwise that race plays a role. The article has proven that.

8.) Your article simply proved the linked article's point which was that the government selectively chooses which laws to apply and which laws not to apply, and also how to apply those laws.

9.) Don't reference Jayson Stark. You should read his 3000 comments that he has where about 90% call for his head as well as calling him a racist.

10.) Finally, why are we spending millions of dollars to prove that a guy lied about using steroids. Certainly, this does not serve the will of the people.

Anonymous Public Defender -- 12/16/2007 12:21 AM  

This is not a homicide or robbery charge, but a claim that Bonds was not candid when asked if he took steroids. The same question posed to McGwire. And yes you do need moral authority to go after such a petty offense and no this Justice department does not have it. Is it a coinincidence that it has prosecuted the top African American stars in football and baseball? And for perjury and dogfighting? In sports, America, and the Bush Administration, race is always an issue.

OpenID amilst -- 12/16/2007 11:53 AM  

I think we are going to depart on whether lying to a grand jury constitutes a "petty offense."

McGwire and Bonds both were asked about steroid use, but any similarities end there. When asked, Bonds denied, under oath in front of a grand jury, using steroids, apparently in the face of contradictory evidence. That is, or could be perjury, a charge initiated by the U.S. Attorney's office conducting the underlying investigation.

McGwire cannot be on the hook for perjury because he never answered the question, so there is no false testimony to prosecute. What he did may constitute contempt of Congress. But it is up to Congress, a distinct actor, to initiate the charges, itself or through the U.S. Attorney's Office in the District of Columbia. I tend to agree that the Committee should have done that, or at least done something to force McGwire to testify or assert a privilege. But the reason the Committee did not do so has much to do with the total disorganization, lack of focus, and lack of understanding among the Committee and its leaders.

Blogger Howard Wasserman -- 12/16/2007 2:11 PM  

By the looks of it Wasserman, your getting OWNED on your own article. Go read the new more compelling argument by Stark.

Anonymous Public Defender -- 12/16/2007 8:44 PM  

Public Defender:

First, apparently it is OK to reference Jayson Stark (your concern for his purported racism notwithstanding) when it supports your point. So I will disregard Point #9 of your earlier comment.

Second, I am not sure how Stark's new column undermines either a) Anything I have said so far in this thread or b) Anything he said in his earlier column. In both, he is arguing for careful, reasoned consideration of different situations and for avoiding easy labels.

Actually Stark is quite consistent between the two pieces: Pettitte and Harrison are being treated differently for no obvious reasons; Clemens and Bonds are being treated differently, but there are (neutral) explanations for those differences.

Blogger Howard Wasserman -- 12/16/2007 9:32 PM  

As long as the race card is played, there will always be a race issue. Of course only certain part of the population can claim that and it avoids debating the real issues.

As has been mentioned, Bonds lied. That's what the government can prove (or at least try to prove). That's what they could prove with Scooter Libby, Bill Clinton, Martha Stewart, etc.

Everyone is entitled to their opionion, but they are not entitled to their own facts. Bill Clinton was not empeached for having sex "with that woman," it was for lying. Martha was not found guilty of insider trading, but for lying. Libby was not not found guilty of leaking who Valerie Plame was, but for lying how he learned of her id and who he told. (Lie was proved by he said, he said, Tim Russert, not a paper trail or wire taps).

If the pursuit of Bonds is racial, why no headlines of Palmeiro or Sammy Sosa? Mark is a target because in front of the whole nation, he refused to answer on advice of counsel. Is that not our right? For all the lawyers that comment on this site, I'd sure hate to hire any of you if I was in trouble. The US Constitution should be the gold standard, and that means that I cannot be forced to incriminate myself, no matter how happy that will make someone.

The double standard I see is not race, but the feeding frenzy to throw MLB players under the bus, while the NFL players get no headlines, no big penalties, and are often rewarded even when tested and found to have used banned substances.

These players are black, and what happened to them? Rodney Harrison, failed test, and was given a 4 game suspension. FOUR GAMES!! Are they going to take his 2 Super Bowl rings away from him or the New England Patriots? No. I sure hear a lot about spy-gate, but no one ever mentions steroids and the advantage Rodney and the Pats got because his use of steroids and or HGH.

Shawne Merriman, tested positive and banned for 4 games. What happened to him or San Diego? Well, he was still eligible for post season awards, and then he got a HUGE campaign add from NIKE. Ever seen the Madden cover? It's a bit hypocritical that the media goes after baseball while this is under their noses.

Clemens can't even give a speech, and he's NEVER tested positive, unlike Shawne.

The list includes players and their punishment from the NFL: Roy Edwards, 4 games; Priest Holmes, 4 games; Chris Henry 4 games; Marcus Stroud, 4 games; Tim Crouch, 6 games; Jarrod Cooper, 4 games; Kenny Peterson, 4 games, etc, etc.

Why no talk of wiping their records from the books? Getting back honors like Pro Bowl apprearances. Getting back Super Bowl rings?

There's a bias okay, and it's against baseball while looking the other way at the NFL.

Blogger elena -- 12/21/2007 12:14 AM  

Bob Nightengale reported today that Davis (R) and Waxman (D) will NOT summon any players to their House Govenrment Reform Committee. Only Bud Selig, Don Fuhr and Sen. Mitchell will testify. Davis said he did not want to turn this into a circus.

Since 99% of players refused to talk to Michell, I think this whole endevor has been worthless. We know there's a problem, let's go to real testing. For many of the players (like Mark McGwire, using andro was not banned, so why destory some of the lives.

Blogger elena -- 12/21/2007 12:31 AM  

Apologies to Priest Holmes, should not be on list.

Blogger elena -- 12/21/2007 2:10 AM  

Shawne Merriman is black. Mark McGwire is white. It would be easy to think that the reason they are treated differently has to do with race and bigotry.

A few minuties ago I saw a beautiful piece on ESPN on Shawne and how his company re-built a San Diego resident's home after the horendous fire had burned it to the ground. It was like an infomercial. they showed the logo of Shawne's company and how it only took them 60 days to build this home. It was great for the family, but come on, it was a million dollar home, not a home in the barrio. And he did not do it for free, he did it at cost. Now people in San Diego know what company can build quickly.

How come ESPN doesn't do a piece on Mark and the MILLIONS of dollars he has CONTRIBUTED quietly to benefit children?

Is is race or baseball frenzy vs. football? Maybe it's both.

Blogger elena -- 12/23/2007 10:58 AM  

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