WASHINGTON — The FBI opened an investigation Thursday into whether Roger Clemens lied before Congress, the first step toward a possible perjury trial in which the government would face the burden of proving Clemens not only failed to tell the truth under oath but did so intentionally.
The announcement came one day after Congress asked the Justice Department to examine whether the seven-time Cy Young Award winner lied when he testified he had never used steroids or human growth hormone. As with Barry Bonds, who was indicted three months ago on perjury charges, the issue is not whether he used performance-enhancing drugs but whether he lied to the government about it.
“It’s the old saying in Washington: The coverup is worse than the crime,” said Mathew Rosengart, a former federal prosecutor and adjunct professor at Pepperdine Law School.
Clemens spoke briefly with reporters during a workout at the Houston Astros’ training complex but would not discuss his reaction to the investigation. His attorney, Rusty Hardin, all but shrugged.
“We’ve always expected they would open an investigation,” he said. “They attended the congressional hearing. So, what’s new?”
The announcement came in a one-sentence e-mail from FBI spokesman Richard Kolko: “The request to open an investigation into the congressional testimony of Roger Clemens has been turned over to the FBI and will receive appropriate investigative action by the FBI’s Washington field office.”
Perjury prosecutions can be problematic because of the difficulty in proving someone intentionally lied. Even if Clemens misspoke, Hardin said, “It’s not a crime to be wrong.”
Defense teams usually cast doubt by claiming the case is no more than one person’s word against another, saying statements were taken out of context, and finding “vague” parts of statements that give the defendant wiggle room, said Loyola Law School professor Laurie Levenson.
But in this case, the public perception that Clemens lied may work against him. In a Gallup Poll released this week, 57 percent of Americans said they think Clemens lied, nearly double the 31 percent who believe him.
“The problem for Clemens is that no one seems to believe him,” Levenson said. ” … Jurors are nothing other than regular folks, so if regular folks think you’re lying, you’re in trouble.”
And intent to lie can be inferred from other evidence. Former vice presidential aide I. Lewis “Scooter” Libby was convicted last year of lying to investigators about whether he leaked the identity of a CIA operative. Libby had denied the charge, saying he had learned her name from others. But the government convinced the jury, based on the testimony of other officials with whom he had discussed the agent, that Libby was not telling the truth.
Rosengart said a grand jury probably would not ask Clemens to testify.
“He may actually request to testify in an effort to try to talk his way out of indictment,” Rosengart said. “That is risky, because if he lies to this grand jury, he could be charged with an additional count of perjury.”
Congress asked specifically for an investigation of Clemens. The letter did not mention Brian McNamee, the former trainer who testified he injected Clemens with steroids and HGH. However, that referral is non-binding and doesn’t mean McNamee is out of trouble.
“I think the reason they did that was to give prosecutors a sense of what was particularly material to the proceeding,” Levenson said. ” … But it doesn’t limit them or a grand jury from looking at other comments. It does not give McNamee a free pass.”
Owner Drayton McLane said the club would reevaluate whether Clemens should be around the team’s minor-leaguers given his legal problems.
“That makes it more complex, it sure does,” McLane told reporters. “The real important factor is what steps will the government take? … We’ll have to evaluate it at the time.”
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