If there is one universal banality about the perjury trial of Roger Clemens available on the sports pages and talk radio stations today, it’s the following, which is a composite of actual quotes and for which I am providing no link, because the sentiment is ubiquitous:
Did Clemens lie? A trial will never really answer that question. Everyone has already formed his opinion on whether Clemens is telling the truth.
Either way, we all know a huge chunk of players took PEDs in the 1990s. That era of the game is forever stained regardless of the outcome of this trial. What is this trial going to accomplish? Is this really the best use of taxpayer money?
I just hope this trial is a short one, because I’d rather focus on the games being played now.
This being Overlawyered, one might suppose the appropriate point of view here would be along those lines. Certainly, from a libertarian point of view (when in Rome…), it’s hard to be sympathetic to any investigation or prosecution whose roots are in substance abuse. If taking steroids was or is a violation of a contractual obligation running from players to Major League Baseball, that would be an entirely private matter. Evidently it wasn’t, or to the extent that it was, MLB would rather not pick at that scab. Major League Baseball keeps lawyers busy with other things.
But we all acknowledge that prosecutors do and should, to some extent anyway, concern themselves with the laws that are “on the books,” which brings us back to that Sports Guy trope: ”What difference does it make? Who cares? Why are you distracting me with those shiny objects?”
Dumb, dumb, dumb, Sports Guy!
Point One: It isn’t overlawyering to prosecute people who mislead law enforcement officials or lie under oath. Yes, people mislead police and prosecutors every day and aren’t prosecuted for it — but famous people often are, because civil disobedience by them can make for a very bad example. What better example of an example-setter is Bill Clinton, a one-man Chief Executive as sexual revolutionary, who had to turn in his law license to avoid a perjury conviction?
Clemens’s main problem was that he was put, rather unavoidably as Scott Greenfield explained at the time, in a perjury trap:
This was a perjury trap. Someone was going to walk away under the cloud of perjury, whether it was Clemens or McNamee. McNamee had the upper hand, having been far more practiced for the performance ahead of him by having had much more time and being far more inclined to be molded for the purpose of giving a good performance.
Celebrities tend to make tough clients, unwilling to bend to the advice of counsel in how to testify and often having counsel too starstruck to tell the client that they aren’t coming off as credible as they think. Sometimes, they just won’t listen to advice. These are people who are used to getting their way. They don’t like being told what to do, especially by people they are paying. But that makes them arrogant, not deceptive.
There have been casualties in this war on steroids. Barry Bonds, Marion Jones and Dana Stubblefield, all black, as noted by Doug Berman, opening the political door to the need for a white defendant [to balance out Barry Bonds]. Clemens walked into this void and may very well find himself the perfect target. Whether he deserves it may never been known, but that doesn’t really matter when you find yourself in the perjury trap.
Clemens might have walked out of the hearing a hero if he had put on a spectacular performance. But alas, he’s only a baseball player, not an actor. Or an agent. It looks like he rolled the dice and lost. But that doesn’t answer the question of whether he lied.
That’s the way it goes when you’re a high roller. You play in the Big Leagues, then you play in the Big Leagues.
Point Two: It doesn’t matter to the real world if the world of sports still “doesn’t care” about Roger Clemens. It matters because it’s the law even still. Yes, there are some categories regarding which even the Commissioner of Baseball has no veto over — even the Players’ Association! This is one of them.
That leads us to Point Three, namely the employment of a favorite cliche of sports “journalism”: ”Can’t they just drop this [fill in] so we can just enjoy da game?”
Hey, Sports Guy: Enjoy the game. You don’t have to report about a trial you say doesn’t matter and that you claim to think no one cares about. But the protests ring hollow because they come in the middle of your reporting about them. Why can’t you enjoy the game? Perhaps there is even time for both!
Your call, Sports Guy. The adults have some business to attend to, however. Continue, by all means, with games; no need to be distracted by the grownups and the game of real life if that is just too much for the boys of summer. There are lots of reasons to question why we prosecute people for “victimless crimes,” and while one of them is, indeed, the fact that “it doesn’t matter to anyone else” when they’ve been done already, that argument not only proves too much — it probably is an inaccurate description of the situation here.
That’s because as every teacher who ever had to fail a student for plagiarism knows, when you don’t play by the rules you don’t only “cheat yourself.” You cheat everyone else in the grade curve. The consequences and ripple effects of cheating are potentially limitless. With apologies to Gaylord Perry, in the case of Roger Clemens, how many careers, fortunes and spirits were broken by what may have been an illegally juiced fastball that far outlived the effects ageing has on the rest of us? We’ll never know. But only a child could believe that because those effects “already happened,” what may have been illegal or wrongful conduct that caused them “doesn’t matter any more.” That argument is no more persuasive here, in fact, than it is with crimes that do have victims. Do we despair of punishment for murder because it will never “bring back” the victim?
The same can be said regarding the perjury, if indeed anyone can suggest that perjury is a victimless crime, allegedly committed to cover it up. There is a pretty good policy reason for enforcing the requirement that sworn testimony not be false. In fact, there is nothing worse for the legal system, or more likely to result in the abuses that this blog documents, than for the legal system to shrug off perjured testimony any more than it already does.
Real life, and real justice, do not end with the last out in the ninth, the buzzer or the Hall of Fame. Or, if the crime is even, as some would have it, with life.
Roger Clemens is, by all reports, in a world of trouble. He was a big boy when he got himself into it. And he may be a lot more grown up by the time he gets… out.