Under oath, Clemens or McNamee will be lying

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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