It's not Rocket science

Mark McGwire doesn't belong in the Hall of Fame, but his lawyer sure does. In a stroke of legal genius, D.C. attorney Mark Bierbower handed McGwire a get-out-of-criminal-hot-water free card by instructing the disgraced slugger to answer a 2005 congressional committee's questions about steroid use with an evasive "I'm not here to talk about the past" reply. So when McGwire recently made the not-so-stunning revelation that he had, in fact, used performance-enhancing drugs during his record-breaking career, he was able to do so knowing he would never have to enter a plea to a perjury indictment. Which is a lot more than Roger Clemens can say. Speaking of Clemens, no one has ever accused the federal government of moving too fast, but those members of Congress who weren't star-struck when the Rocket Man testified before them on Feb. 18, 2008, sure did talk a big game. They told the former Sox ace they didn't believe his story that he had never taken a banned substance and said his bumbling testimony flew in the face of the credible evidence. Throughout the remarkable five-hour proceeding, they mentioned the word "perjury" more times than the cast of "Jersey Shore" went tanning during the first season of the MTV reality show. But two years have passed, and the silence from the grand jury investigating whether Clemens perjured himself is deafening. No indictment. No Mike Tyson perp walk. No nothing. My space here is limited, so trust me when I say the list of Washington bureaucrats who declined to comment on Clemens, or issued the old "ongoing investigation" mantra that prosecutors love citing, is longer than the line outside Salem District Court the day after Halloween. Attorney General Eric Holder, who was a partner at the D.C. firm that represented Clemens, has recused himself from all things Rocket, as has his criminal division chief, Lanny Breuer, who was Clemens' counsel before Congress. The DOJ is well aware that three years remain before the statute of limitations on perjury expires, and we all know federal prosecutors like their cases wrapped up neatly with a bow, but at some point they have to put up or shut up. Rep. Thomas Davis summed it up perfectly at the hearing when he said that either Clemens or his former trainer, Brian McNamee, who also testified, was fibbing. "We have before us two very different stories," Davis said at the time. "Someone's lying in spectacular fashion about the ultimate question." With the answer to that question contained in a 189-page transcript, most observers, including McNamee's New York lawyer, Earl Ward, figured the government would've made a move by now. "Obviously, we're concerned it's taken this long because, in our view, they've gathered sufficient evidence to show [Clemens] perjured himself," Ward tells Lawyers Weekly. "The question becomes: Why are they delaying the indictment? We thought it was going to happen last January." Ward confirms that McNamee, who sued Clemens for defamation, provided the government with syringes and gauze pads allegedly containing Clemens' blood and DNA. The DNA, along with other facts memorialized in Sen. George Mitchell's damaging 2007 steroid report to major league baseball, would seem to corroborate much of McNamee's story. On top of that, Clemens' longtime friend and fellow Yankee pitcher, Andy Pettitte, submitted a sworn affidavit to Congress stating that all the incriminating things McNamee said about Pettitte were accurate. The same holds true for former Bronx Bomber Chuck Knoblauch. As Rep. Elijah Cummings said at the end of the hearing, McNamee's testimony about Clemens' two teammates was "borne out to be true. And for some reason, ... when it comes to you, it's a whole other thing. It's hard to believe you, sir. I hate to say that as you're one of my heroes." With several members of Congress echoing those sentiments, there appear to be plenty of percipient witnesses who think Clemens' nose grew on Capitol Hill. So what gives? "I don't know if they're looking for that smoking gun, but given that they haven't announced the case is closed, and that we know they've recently reached out to potential witnesses, my sense is this is still an active investigation," Ward says. "Occasionally, we'll call and ask where they're at with everything, but they play it very close to the vest. They're federal prosecutors; you're not going to get anything out of them." If the last two years are any indication, it looks like another thing we may not get out of them is an indictment. Published: Tue, Mar 2, 2010

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