“Let me be clear,” Clemens told House members during a nationally televised hearing. “I have never taken steroids or HGH.”
McNamee also testified in blunt terms at the same hearing, saying he injected “those drugs into the body of Roger Clemens at his direction.”
Federal prosecutors began investigating the matter when they received a referral from lawmakers concerned that one of the men had lied to Congress. After a lengthy investigation, prosecutors sided with McNamee, and a grand jury indicted Clemens on charges of perjury, obstruction of Congress and making false statements to the House Committee on Oversight and Reform.
Legal experts say prosecutors may have a tough time proving that Clemens “knowingly” took steroids and didn’t simply think he was being administered vitamins or another kind of substance. A pending legal ruling by U.S. District Judge Reggie B. Walton, who is presiding over the trial, could also hamper those efforts by preventing some testimony from former teammates of Clemens that sought to bolster McNamee’s credibility.
Prosecutors will also have to prove that any alleged lies were “material” to congressional action.
The “material” standard may be the toughest hurdle for them to overcome, experts said, because it is unclear how Clemens’s statements affected the House investigation or future congressional action.
“At the end of the day, baseball is a staged game of entertainment for an audience,” said White, the former prosecutor. “It’s going to be difficult to persuade a jury that his denial is material to anything other than his own legacy.”
It won’t help, White and other former prosecutors said, that some jurors may wonder if the government has better things to do in tough economic times than prosecute a former ballplayer who may have lied to Congress.
“With the bad economy and the overseas turmoil that continues, prosecutors are also fighting the ‘who cares’ battle,” said Steven Levin, a former federal prosecutor and a criminal defense lawyer. “They have to get a jury to care about a baseball player who may have lied to Congress, which arguably should have had more pressing matters other than steroids on which to focus.”
Staff writer Dave Sheinin contributed to this report.