Roger Clemens trial: Government overstepped its bounds

Sally Jenkins
Columnist June 19, 2012

Roger Clemens should never have been in court. That was the real verdict that came out of his trial for lying to Congress about whether he used performance-enhancing drugs. The miscarriage of justice is not that Clemens may have gotten away with something, but that vindictive government functionaries can spend five years trying to jail someone for a crime without adequate evidence. That’s far more dangerous than any syringe Clemens may have used.

I care only minimally what Clemens injected in his butt — his butt is his personal business. But I do care that a government cowboy can put his boot on Clemens’s front porch just because he doesn’t like the look of his face. Because he thinks Clemens did something “dirty.” Because he feels Clemens doesn’t meet his personal definition of “clean sport.”

Sally Jenkins is a sports columnist for The Washington Post. View Archive

Someone in authority at the Justice Department should have said to the federal investigators who pursued Clemens since 2007 on perjury charges, “You don’t have the evidence that can win a conviction.” The government never had a case, and knew it didn’t have a case (or at least should have), and brought the case anyway.

That’s not a prosecution. It’s a persecution. When federal agents willfully confuse the difference between those two words — when they bring a charge simply because they want to embarrass and punish someone for something they can’t actually prove — we’re living in a place we don’t recognize.

Whatever your outrage at the notion that Clemens might have used performance-enhancing drugs when he played Major League Baseball and lied about it, it should double at the flimsiness of the actual testimony. The entire case against Clemens consisted of the shifting and unreliable account of a proven dope dealer, Brian McNamee, who was motivated by immunity. McNamee’s story changed yet again on the witness stand, and his account was contradicted at almost every turn.

He claimed to have saved some physical evidence from a decade ago — in a beer can. A beer can. Federal prosecutors brought a case into court based on a beer can — and that’s exactly the standard they lived up to.

Time after time during the trial, the government’s evidence turned out to be junk, or far weaker than described. We heard that Andy Pettitte would testify in no uncertain terms that Clemens admitted to using human growth hormone to him. But when Pettitte took the stand, he said there was a “50-50” chance he had misunderstood their conversation.

We heard McNamee had preserved needles, cotton balls, ampules and gauze with traces of Clemens’s DNA. Only to find out that the evidence was extremely iffy, the box in which he kept it was unsealed and tampered with at least once, and it was almost certainly contaminated.

We heard McNamee had preserved the needles and gauze because his wife Eileen stridently insisted he do so to protect himself. But then his wife, a soft-spoken first-grade teacher, directly contradicted him on this point, and virtually every other one too, down to the brand of beer.

Ninety-three federal officers became involved in the case against Clemens. To repeat: 93 federal agents were sicced on Clemens for a simple statement he made before Congress about what he put in his body while playing baseball. And all they came up with was a beer can and clearly impeachable testimony.

The jury took less than 10 hours to declare Clemens not guilty on every count — not because they were dazzled by Clemens’s celebrity but because the case was built literally on garbage.

Your suspicion that Clemens used PEDs and fibbed to Congress about it may be strong, as is mine. But that doesn’t matter. It also doesn’t matter how much money you think the government wasted on a frivolous prosecution, or whether you think the legislative body should have better and more important work to do than hold hearings on how baseball pitchers keep their arms fresh.

What matters is that a handful of investigative fanatics abused their governmental power and bent federal law all out of shape in order to go big-game hunting using Roger Clemens as a target. It matters that the case failed to meet any reasonable threshold for prosecution, yet no one stopped them.

The Clemens case came about because a handful of zealots who are presumably bored by their real jobs were overly empowered by former president George W. Bush’s mention of the performance-enhancing-drug issue in his 2004 State of the Union address. Investigators suddenly abandoned actual gumshoe detective work to chase athletes and headlines, all under the auspices of cleaning up sport, claiming PED usage has become a so-called societal problem.

Overreaching by government is far more harmful than any of the alleged offenses. It has poured more poison into the system than is contained in any needle.

For Sally Jenkins’s previous columns, go to washingtonpost.com/jenkins.

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