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Monday, February 11, 2008
Another Reason Not to Take Congressional Hearings Seriously

I will listen to this Wednesday's hearing before the House Committee on Government Reform and Oversight, that will include Roger Clemens and his former trainer and alleged steroids source, Brian McNamee. I already thought the whole thing would be a substantively meaningless exercise involving little more than political grandstanding by committee members and posturing by witnesses, especially Clemens; that view is based on having watched prior hearings involving professional athletes. I long have believed members relish hearings such as this because they will do nothing during this Congress that will bring them as much public and media attention as this event.

But my cynical view of this hearing is confirmed by this story in Saturday's New York Times, describing Clemens' two-days of individual, "fun" and "social" meetings with individual committee members. Rep. Edolphus Towns of Brooklyn, N.Y. met with Clemens, although apparently has not met with McNamee, who was not given a similar opportunity to present any pre-hearing evidence beyond his sworn deposition or to meeting committee members in a similarly fun and social setting. And it is not clear whether Towns had read either man's deposition.

Yet, we get the following nuggets from Rep. Towns:

"Towns said he came away believing that it was Clemens’ accuser, Brian McNamee, who might ultimately be charged with perjury.

"Towns, the Brooklyn congressman, was speaking in positive terms about Clemens, saying his half-hour personal visit made him a believer in Clemens’ character. But Towns said he did not feel that way about McNamee; he said he found his story of holding onto used syringes and swabs for seven years to be 'weird.'"

Towns said when he asked Clemens and his lawyers about McNamee, they attacked McNamee’s credibility.

Oh, and Towns' chief-of-staff--his top legislative and policy adviser--posed for a picture with Clemens at the end of this supposedly serious meeting held in anticipation of her boss participating in a legislative fact-finding investigation of whether Clemens violated baseball rules, society's laws, or both.

Based on this story, it is hard to view the committee as acting as a serious, deliberative body committed to uncovering the truth. At least one member has made up his mind that someone should be charged with a federal felony based solely on a private, off-the-record, unsworn meeting with one of two competing witnesses, without having seen or heard any actual evidence. And that member has gone on the record about his views. About half the committee held private meetings with this one witness and, according to The Times, all came away similarly impressed with Clemens and his credibility and seeming to believe his side of the story--before they heard the official version from competing witness(es).

The likely tenor of this hearings should be obvious two days before we get there. Clemens will be treated with kid gloves--I will not be surprised if no one ever asks him flat-out whether he ever has used steroids, HGH, or other performance=enhancing drugs. The focus will be on the private conversations Clemens had, not on his sworn deposition to committee lawyers (to whatever extent they may differ). McNamee, on the other hand, will be attacked in many questions (questions aree preceded by a long, rambling speech that, basically, will call him a liar). My guess is he will be threatened at least once with perjury charges.

Many have argued that whether baseball players are playing by the rules and preserving the "integrity of the game" should not be a subject of congressional concern; I somewhat agree with that notion. But this is more a point about process. If members of Congress decide such hearings are appropriate and within their legislative jurisdiction, they ought to follow something that resembles basic notions of procedural fairness. Do not hold ex parte conversations with one witness. Do not predetermine your views before any evidence has been taken--and certainly have the good taste not to announce those views a week early in The Paper of Record.

And if you subpoena someone to testify because that person has been implicated in the alleged wrongdoing you purportedly are investigating, tell your staff not to pose for smiling photographs with the witness. It looks just a bit unseemly.

Update I: Thursday, 6 p.m. C.S.T.:

ESPN's Gene Wojciechowski questions just how well committee members can get at the truth, given how starstruck they seem to be.

Update II: Thursday, 6 p.m. C.S.T.:

Committee Chair Henry Waxman sent a letter tio Rusty Hardin, Clemens' lead attorney, expressomg concern that Hardin was attempting to intimdate a federal official, federal agent Jeff Novitsky (the agent who lead the investigation leading to Barry Bonds' perjury charges), by saying that "if [Novitsky] messes with Roger, Roger will eat his lunch." Hardin responded today, expressing regret for his "inelegant" statements. This keeps getting stranger . . .


Question...I was told by a co-worker that it was illegal for Congress to question Clemens based on Pettitte's deposition since he (or his lawyers)did not have a chance to question Pettitte. I said that's wrong since this is a hearing and not a court procedure. Who's right?

Anonymous Anonymous -- 2/12/2008 5:48 PM  

You are. The rules of evidence, including rules regarding hearsay, are not in play. Nor is there a right of any witness to cross-examine any other witnesses to the hearing--Clemens' lawyers will not have a chance to question McNamee.

Blogger Howard Wasserman -- 2/13/2008 12:53 AM  

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