Commentary

Going forward, questions will focus on Clemens more than McNamee

Originally Published: February 13, 2008
By Lester Munson | ESPN.com

During Wednesday's hearing on Capitol Hill, which lasted more than four hours, members of the U.S. House of Representatives Committee on Oversight and Government Reform interrogated Brian McNamee and Roger Clemens about their irreconcilable stories concerning McNamee's work as Clemens' trainer. The proceedings, which included newly disclosed evidence, raised further questions about the possibility of future criminal investigations and charges. Here are some of the questions and their answers:

Did the hearing produce any evidence that could cause problems for Roger Clemens?

Yes. Clemens and his team of lawyers and crisis management experts should worry about two developments in the hearing.

[+] EnlargeRoger Clemens and attorneys
Chip Somodevilla/Getty ImagesRusty Hardin, left, and Lanny Breuer, Roger Clemens' top two attorneys, found plenty to which to object during Wednesday's hearing.
First, Clemens had no solid answer for the devastating testimony and written statement from Andy Pettitte. Not only did Pettitte corroborate McNamee's testimony about Pettitte's use of HGH, he also established a chronology on Clemens' statements about HGH that could lead to a perjury charge. Responding to Pettitte's assertion that Clemens told him he used HGH, Clemens insisted on several occasions during Wednesday's hearing that Pettitte had "misunderstood" him. He suggested that the subject of the Pettitte-Clemens conversation was the use of HGH by Clemens' wife. Clemens even tried to interrupt committee chairman Henry Waxman to repeat his claim at the end of the hearing, and Waxman gaveled him into angry silence. The problem for Clemens is that Debbie Clemens' use of HGH came two years after Clemens' conversation with Pettitte. And, as Waxman explained, that means Clemens "made untrue statements in his deposition [sworn testimony to the committee last week]."

Second, Clemens and his legal team blundered into the possibility of a charge of tampering with a witness. The potential charge could stem from their handling of a committee request for information about a woman who once served as a Clemens family nanny. (The committee staff requested the woman's contact information last week.) The committee wanted to ask her about a barbecue luncheon at Jose Canseco's house in Miami in June 1998, and whether Clemens attended the party. The protocol for producing a witness requires that a lawyer, or an investigator for the lawyer, contact a witness and send their information to the committee. Instead of following the protocol, Clemens called the former nanny personally and invited her to his home for a meeting on Sunday. We do not yet have the entire content of their conversation, but it is clear that he discussed the inquiry with her. Waxman was clearly angry that Clemens talked with the nanny before the committee's staff interviewed her and said, "At the very least, it has the appearance of impropriety."

Did the hearing produce any evidence that will cause problems for Brian McNamee?

No. Although he was attacked viciously by a few Republican members of the committee and called a "liar" and "drug dealer," McNamee performed surprisingly well. He admitted that he had been less than truthful with federal agents and the Mitchell committee. He said he withheld some of his information -- and his box of syringes, vials and gauze pads -- in an effort to "downplay the use of these drugs" and protect players. But in the course of interviews with five groups of investigators, including Clemens' detectives, he gradually revealed the information he knew and the physical evidence that he had accumulated. McNamee's statements have been corroborated by Pettitte and Chuck Knoblauch. Mitchell and his staff have endorsed his veracity on numerous occasions. It is unlikely that the committee will recommend charges against McNamee and equally unlikely that the FBI or the IRS will investigate him.

Rusty Hardin and Lanny Breuer, two of Clemens' attorneys, tried to interrupt the hearing with objections and arguments. Isn't a lawyer allowed to represent his client in a hearing on Capitol Hill?

Hardin and Breuer jumped to their feet several times during the hearing, trying to voice objections to questions from the committee. They were particularly vociferous as they interrupted Waxman's description of Clemens' recent contact with the nanny as possible tampering with a witness. They also whispered in Clemens' ears with suggestions for answering some questions. The rules on Capitol Hill do not permit interruptions and objections from lawyers, but they do permit whispered conversations between lawyers and their clients. Waxman allowed the lawyers to say a fraction of what they wanted to say in their objections before telling them to sit down. And he waited patiently as the lawyers whispered to Clemens. Most lawyers are reluctant to whisper to their clients during a hearing; it looks like they are coaching a witness who is having trouble answering a tough question. McNamee's lawyers whispered to their client very rarely. But on at least three occasions, Hardin and Breuer tried to help Clemens in whispered conversations before he answered a question.

Rep. Henry Waxman
AP Photo/Susan WalshThis is how Rep. Henry Waxman, D-Calif., started Wednesday's hearing. He ended it by gaveling Roger Clemens to silence.
What happens next?

Nothing is certain, but there might be additional investigations of Clemens' testimony and of the nanny situation. It could come from the committee or, more likely, from the team of federal agents who have been working on the BALCO investigation.

When the committee came to believe that Miguel Tejada might have lied in its earlier investigations, it asked the Department of Justice to investigate. That request came from both the Democrat and Republican members of the committee. At this hearing, it was clear that a division of opinion was beginning to develop along party lines, with most Republicans lining up behind Clemens and most Democrats lining up behind McNamee. It is unlikely that the committee will send a bipartisan request for an investigation on the McNamee-Clemens issues. It is possible, however, that Waxman may ask for an investigation of Clemens' possible perjury and witness tampering. He enjoys significant powers as the committee chairman and was clearly unhappy with the nanny situation.

Several FBI and IRS agents were in the audience at the hearing. The agents leading the BALCO investigation already have interviewed McNamee and are investigating the authenticity of his box of syringes and gauze pads that he claims were used when he injected Clemens with HGH. Their investigation could lead to a grand jury inquiry of Clemens. But that is far from certain.

Some committee members attacked McNamee and his veracity. Others attacked Clemens. Who is the most important witness in this dispute?

Andy Pettitte is the most important witness. Although the committee members clearly disagreed on the relative veracity of McNamee and Clemens, they all agreed that Pettitte is a man of integrity who responded to the committee's questions with truths that were painful to him. His testimony about his friend Clemens was a most painful act of integrity, both sides agreed. Both the Democrats and Republicans thought so highly of Pettitte and his cooperation that they granted his request to be excused from testifying at Wednesday's hearing. Excusing Pettitte might have been a mistake. If he had been present to tell his story of HGH and his conversations with Clemens, it could have been the most illuminating testimony in the hearing. It is of considerable benefit to Clemens that Pettitte, with his material highly damaging to Clemens, was not present to add to his problems. Any decision on the prosecution of Clemens will turn not on McNamee's credibility but on that of Andy Pettitte.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.