The Pointless Prosecution of Roger Clemens

All perjuries are not created equal.

If it were a crime to venture onto Capitol Hill to reveal yourself as a self-absorbed liar with an inability to admit mistakes, there would be tumbleweeds blowing through the vacant halls of Congress. Fortunately for members of the legislative branch, that is not a crime. Unless your name is Roger Clemens.

The eccentric baseball legend is not one to let people disparage him without a forceful response, any more than he was one to let batters crowd the plate without retaliation. A couple of years ago, after being accused of using performance-enhancing drugs, he voluntarily appeared before a House committee to heap scorn on the charge.

His denial was not very convincing, since other witnesses—notably longtime teammate Andy Pettitte—had given statements contradicting him. He was repeatedly reminded by skeptical interrogators that he was under oath. Democratic Chairman Henry Waxman and ranking Republican Tom Davis joined together afterward to advise the Justice Department that "significant questions have been raised about Mr. Clemens' truthfulness."

But never mind if anyone believed him, or if his alleged dissembling made any difference on anything. Federal prosecutors got him indicted for perjury, and he faces trial on charges that carry penalties of up to 30 years in prison.

It's possible to imagine less worthy uses of prosecutorial resources, but not many. Indictments for perjury unaccompanied by other criminal charges are rare, usually employed only when a statute of limitations makes it impossible to prosecute the accused for more significant felonies.

The Rocket, for some reason, is not charged with violating federal law by possessing or using illegal substances. He is charged merely with lying to members of Congress.

Members of Congress, of course, have been known to lie to their constituents and to each other, without fear of going to prison. And it's hard to see what would be lost if Clemens' sworn denial were written off as a risible burst of hot air.

United States attorneys face a nearly endless array of mischief and mayhem. Because of limited resources, they cannot prosecute everyone who breaks the law. Yet those in charge of prosecutions for the nation's capital chose to give priority to an offender who presents no threat to public safety and whose real crime was to disrespect a powerful group of elected officials.

"It's hard for me to see the federal interest in prosecuting Clemens in this kind of case," says Ron Safer, a former assistant U.S. attorney. "Cases that are worthy of prosecution are turned down every day because the federal interest is insufficient."

Perjuries are not all created equal. Rod Blagojevich and Lewis "Scooter" Libby were both convicted of lying to federal agents, but they did so in order to impede criminal investigations into other suspected wrongdoing. Another baseball star, Barry Bonds, was indicted for perjury because he supposedly lied to a grand jury probing illegal drug trafficking—testimony that could have allowed criminals to go free.

Various government officials prosecuted for lying to Congress about the Iran-Contra scandal were trying to suppress the truth and block congressional oversight on a matter of grave public concern. In instances like these, prosecution of perjury serves as a deterrent to conduct that interferes with vital government functions.

Clemens' supposed deceit, by contrast, came in a bit of congressional theater. The hearings were not necessary to formulate legislation—and, in fact, no legislation came out of the process. The point was to grab the spotlight and convey the impression of action to gullible constituents. Congress was holding hearings just for the fun of holding hearings.

Reginald Brown, an associate White House general counsel under President George W. Bush, told The New York Times that the committee members were pushing the boundaries of their legitimate authority: "They did this to figure out whether Clemens or his trainer were telling the truth, and that is arguably not a legislative function. It's not Congress' job to hold perjury trials."

All this might be easier to see if the case involved a more sympathetic character than Clemens, whose plight is largely the result of his own gargantuan hubris. But a meaningless act of perjury should not become a criminal case merely because it was allegedly committed by a prize jerk.

In this case, prosecutors seem to be letting their pride and indignation lure them into a fight they would have been better off declining. Sort of like Roger Clemens.

This column previously appeared at Reason.com.

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