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Monday, January 11, 2010
A legal look at talking about the past

By Lester Munson
ESPN.com

Mark McGwire's admission Monday that he was using steroids before, during and after his record-setting 1998 season raises questions about his testimony before a committee of the U.S. House of Representatives in March 2005. In an appearance that profoundly damaged his reputation, McGwire refused to answer questions about his use of steroids, saying repeatedly, "I'm not here to talk about the past." His statements to the committee were made under oath, and when compared with the admission he made Monday, raise legal questions. Here are some of the questions and their answers:

McGwire said one thing to the committee under oath in 2005 and a totally different thing today. Did he lie to the committee?

McGwire's mantra -- "I'm not here to talk about the past" -- was embarrassing, and seemed foolish. But he might actually have been smarter than he appeared to be. As awkward as he looked while testifying, McGwire shrewdly protected himself from allegations that he lied to Congress, now that he has admitted to using steroids. He neither admitted nor denied anything to the House committee. To show that he was lying, investigators and prosecutors must be able to prove that he said something in 2005 that was not true. It would be difficult to argue that admitting to steroid use now is in any way inconsistent with what he said to the committee then.

Mark McGwire
Might be that Mark McGwire's 2005 testimony was more shrewd than it looked at the time.

It was obvious that McGwire was not answering questions and was not helping the committee in its inquiry. Isn't there something wrong with that?

Yes, there might be something wrong with McGwire's attitude, conduct and statements. McGwire was clearly not cooperating with the committee. He gave very few responsive answers. Some would argue that he was showing his contempt for a process of the U.S. Congress. That can be a crime. Others would say that he was obstructing the path of justice with his tricky answers. That can result in a charge of obstruction of justice. But it is highly unlikely that the House of Representatives or any of its leaders will seek to prosecute McGwire.

If McGwire was contemptuous of the House committee and failed to answer any of its questions, why wouldn't he be prosecuted?

The purpose of the committee hearing was to highlight the use of steroids in Major League Baseball and to push the lords of baseball to do something about it. The committee was successful in both of these objectives. The testimony from McGwire and the later revelation of Rafael Palmeiro's positive drug test put a spotlight on steroids that no one had anticipated. The owners and the players quickly responded with a new procedure for testing and punishment. It might not satisfy everyone, but it was a major improvement. Former Rep. Tom Davis, R-Va., the chairman of the committee that conducted the hearings, was totally satisfied with these outcomes. Even if he were still leading the committee (he has since retired), neither the Republicans nor the Democrats would have any interest in a criminal investigation and charge against McGwire. If congressional committees prosecuted every witness who failed to answer a question in a responsive way, the courthouse would be flooded with criminal cases.

They are investigating Roger Clemens and his testimony before a House committee. Why won't they investigate McGwire?

Clemens was not as shrewd as McGwire. Clemens was categorical in his denials that he used HGH and steroids. In his own defiant way, he told the committee things that the committee strongly suspected were false. Both political parties, the Republicans led by Davis and the Democrats led by Rep. Henry Waxman, D-Calif., agreed that Clemens possibly had lied and should be investigated. If Clemens had said, "I'm not here to talk about the past" instead of confronting every question, he would not be under investigation.

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.

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