Michael Carroll, Albany Government Law Review Member
On February 13, 2008, the House Committee on Oversight and Government Reform held a hearing that drew the attention of all the national media outlets in the United States. The hearing was televised live, and many Americans closely watched the testimony of the star witness involved. One month earlier, this witness had a chance to explain the circumstances that brought him to Congress in an exclusive interview on “‘60 Minutes.’” However, the situation this witness faced in February was different than his television interview. While in front of the Committee, he was required to take an oath to testify truthfully, and he had to endure questioning from some members of Congress who highly doubted his credibility and cast doubt on the validity of his illustrious career. The hearing “split along partisan lines,” seeing Democrats attack the witness and Republicans defend him. This political tension did not occur as a result of testimony from a government official or a CEO of an American corporation. Instead, it was the testimony of Roger Clemens that caused this political rift.
Roger Clemens, a former pitcher for the Boston Red Sox, Toronto Blue Jays, New York Yankees, and Houston Astros, had a career that spanned from 1984 to 2007. Mr. Clemens compiled 354 wins “seven Cy Young Awards . . . [and was] named to All-Star teams eleven times.” When Mr. Clemens retired in 2007, Major League Baseball (MLB) faced allegations of widespread steroid abuse by some of the sport’s top players. With criticism coming from the media, the U.S. government, and baseball fans, the Commissioner of the MLB, Bud Selig, requested that former United States Senator George Mitchell undertake an independent investigation looking into the use of performance enhancing drugs (PEDs) in MLB. After performing this investigation, Senator Mitchell submitted a report to MLB in December 2007 which alleged that Roger Clemens (among others) used PEDs.
The principle source of information regarding Roger Clemens’ use of PEDs was gleaned from his former trainer, Brian McNamee. At the time of the Mitchell investigation, Mr. McNamee had already been the subject of an inquiry by the U.S. Attorney’s Office for the Northern District of California as “a possible sub-distributor” of PEDs. As a part of this investigation, Mr. McNamee entered into a written agreement with the U.S. Attorney’s Office that “no truthful statements [could] be used against [him] in any federal prosecution by that Office.” At the request of the U.S. Attorney’s Office, Mr. McNamee held several interviews with staff working on the Mitchell Report. At these meetings, Mr. McNamee was told that he faced possible “criminal charges if he made any false statements,” and that all of his statements made for the Mitchell Report were “subject to his written agreement with the U.S. Attorney’s Office.”