If Clemens Is Pursued, a Grand Jury Is Probable
By MICHAEL S. SCHMIDT and DUFF WILSON in THE NEW YORK TIMES
Published: February 16, 2008
WASHINGTON — If the Justice Department moves ahead with an investigation into Roger Clemens’s statements under oath to Congress over the last several weeks, federal authorities will probably convene a grand jury to delve deeper into Clemens’s possible links to performance-enhancing drugs and to question him more directly.
Clemens has testified under oath twice. The first came Feb. 5, when he was deposed by Congressional investigators. In that deposition, he maintained that he never used performance-enhancing drugs, thus continuing his denial of assertions made about him in the Mitchell report by his former trainer Brian McNamee.
The second instance came Wednesday, when Clemens reiterated his denials to members of the House Committee on Oversight and Government Reform. In that session, Clemens and McNamee were pitted against each other in front of members of Congress who faced time limits during their questioning. In some instances, the members did not even appear to have a full understanding of the facts.
In a grand jury setting, however, prosecutors can question Clemens, or McNamee, in a far more controlled environment without the turbulence of a televised Congressional hearing.
“The grand jury is one of the greatest tools federal prosecutors have, and it doesn’t take much to convene,” said Mathew Rosengart, an adjunct professor at Pepperdine University and a former federal prosecutor in Washington. “The grand jury can last as long as 18 months and will allow prosecutors to look for other evidence and try and pin him down on more specifics.”
A decision by the Justice Department to convene a grand jury would also signal that it viewed the Clemens-McNamee case seriously, and was determined to discover who was lying.
“You don’t extend and invest your resources into a grand jury and not expect the matter to go forward to find out who is telling the truth,” Rosengart said. “It would send a message that the government is serious about bringing an indictment.”
If the matter is brought before a grand jury, Clemens would find himself in an almost identical situation to the one Barry Bonds found himself in in 2003, when he testified before a federal grand jury in San Francisco that he never knowingly used performance-enhancing drugs. Four years later, last November, Bonds was indicted on charges that he lied to the grand jury about his use of those drugs.
In the case of Clemens, the statements he made in the last week and a half can be prosecuted, if determined to be false, because lying to a federal agent or a federal authority is a crime. Lying under oath is perjury.
Marion Jones, the former track star, pleaded guilty to lying to federal authorities in San Francisco and New York. Miguel Tejada, the Houston Astros shortstop, is being investigated for possibly lying to federal authorities when he denied to Congressional investigators that he had talked about, or used, steroids.
The crime is punishable by up to five years in prison. For a first offender, federal sentencing guidelines show a conviction is more likely to be punishable by a range of 15 to 21 months if the person pleads guilty, or 24 to 30 months if he pleads not guilty and is convicted. Those sentence ranges assume the judge rules that the false statement resulted in “substantial interference with the administration of justice.”
The United States Attorney’s Office for the District of Columbia, which would presumably have jurisdiction over any false statements made to Congress in the Clemens-McNamee case, has successfully prosecuted 28 people for false statements to federal authorities over the last five years. Three other cases involved a perjury charge, which essentially carry the same penalties.
None of the perjury charges and only one of the cases involving false statements to federal authorities were for making false representations to Congress.
That one instance was a 2006 case involving Lester M. Crawford, a former commissioner of the Food and Drug Administration who submitted false financial disclosure documents to the Senate Committee on Health, Education, Labor, and Pensions.
Of the perjury cases, two were for statements to the Securities and Exchange Commission and one was for statements to a grand jury about a financial crime. “Not only can anyone that is called before the grand jury be prosecuted for lying, anyone that tells the grand jury different facts from what they told Congress can also be prosecuted because they would have lied to either the grand jury or Congress,” said Daniel C. Richman, a professor of law at Columbia University.
Further, Richman said, “The grand jury will allow the government to spend months doing things the committee didn’t have the time to do.”
However, Richman cautioned, just because the oversight committee might have been lied to by Clemens or McNamee does not mean the Justice Department will be eager to investigate the accounts. They could let the matter drop.
“There is an extraordinarily broad range of matters the House government reform committee has shown an interest in and the Justice Department would not want to give it an automatic call on its scarce resources whenever a witness, even a famous one, is suspected of lying to legislators,” Richman said.
But the presence of various federal agents at Wednesday’s hearing indicates that the Justice Department is closely following the Clemens-McNamee case and will probably continue to pursue it.
