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Wednesday, February 27, 2008

Congress Asks DOJ to Investigate Whether Roger Clemens Committed Perjury, Memo States Seven Contradictory Assertions

Congress has officially requested that the Department of Justice investigate whether or not Roger Clemens lied under oath during his deposition dated Feb. 5, 2008 and the Congressional hearings on February 13, 2008 when he denied using performance-enhancing drugs.

House Oversight and Government Reform Committee chairman Henry Waxman and ranking Republican Tom Davis sent a letter to Attorney General Michael Mukasey, urging the investigation.

Waxman also had committee Democrats compile an 18-page memo outlining reasons for the referral. The memo describes "seven sets of assertions made by Mr. Clemens in his testimony that appear to be contradicted by other evidence before the committee or implausible."

The seven assertions from the memo:

1. MR. CLEMENS'S TESTIMONY THAT HE HAS "NEVER TAKEN STEROIDS OR HGH

Section 1 outlines the basic assertion by Clemens that he never used anabolic steroids or human growth hormone (hGH). Clemens’ testimony included numerous denials of such activity including "I am just making it as possibly as clear as I can. I haven't done steroids or growth hormone."

The Committee received three pieces of evidence that call Mr. Clemens's testimony into question: (1) the testimony of Mr. Clemens's former strength and conditioning coach, Brian McNamee; (2) the testimony and affrdavit of Mr. Clemens's former teammate, Andrew Pettitte, and the affidavit of Mr. Pettitte's wife, Laura Pettitte; and (3) Mr. Clemens's medical records.

A. The Testimony of Brian McNamee

The memo concedes McNamee has mislead investigators in the past, but “in this case” McNamee’s testimony was corroborated by Andy Pettitte and Chuck Knoblauch and “there is little reason to believe that Mr. McNamee would provide truthful testimony about Mr. Pettitte and Mr. Knoblauch, but false testimony about Mr. Clemens.”

It also cites Jim Murray’s deposition as corroboration regarding a meeting between McNamee and Murray in 2003. Though Murray “could not remember certain details” he did say he remembered the meeting and that he remembered McNamee "saying something about drug test results, having knowledge of the drug test results."

B. The Testimony and Affidavit of Andy Pettitte and Affidavit of Laura Pettitte

Along with corroborating McNamee’s testimony about himself, Andy Pettitte told investigators about a conversation he had with Clemens in “1999 or 2000” in which Clemens admitted using human growth hormone. He also told them about a second conversation with Clemens in 2005 wherein Clemens denied having told Pettitte about using hGH, insisting instead that Clemens was referring to his wife, Debbie Clemens. Pettitte indicated that he didn’t believe Clemens.

Roger Clemens and Brian McNamee, while disagreeing on the specifics of the incident, both testified that Debbie Clemens use of hGH occurred in 2003.

“This timeline would appear to rule out the possibility that Mr. Clemens could have been referring to his wife's use of HGH in the first conversation with Mr. Pettitte. Furthermore, Mr. Pettitte testified that prior to the 2005 conversation, Mr. Clemens never told him that his wife had used HGH.”

Andy Pettitte’s wife, Laura, submitted an affidavit to the committee recalling a similar description of the two conversations.

Andy Pettitte also recalled two conversations with McNamee about Roger Clemens use of performance enhancing drugs. The first, in 1999 or 2000 shortly after Pettitte’s first conversation with Clemens about hGH.

"I spoke with Brian McNamee. Only he and I were parties to the conversation. I asked Brian about HGH and told him that Roger said he had used it. Brian McNamee became angry. He told me that Roger should not have told me about his use of HGH because it was supposed to be confidential."


According to Pettitte, in the second conversation which took place in 2003 or 2004 at Pettitte’s home, McNamee told Pettitte that he “had gotten steroids for Roger." McNamee, in his deposition “independently confirmed two conversations with Mr. Pettitte that appear to be the same conversations described by Mr. Pettitte.”

C. The Medical Evidence

McNamee told Clemens’ representatives during a secretly recorded conversation, then to congress, that Clemens had developed an abscess on his buttocks in 1998 that had likely occurred from an injection of Winstrol administered by McNamee. The committee acquired multiple medical records from the Toronto Blue Jays that show Clemens had a “palpable mass” on his left buttocks.

Clemens suggested that the mass could be attributed to a strained muscle or a reaction to a vitamin B12 injection.

The committee consulted Dr. Mark Murphey, the Chief of Musculoskeletal Radiology at the Armed Forces Institute of Pathology, who examined the MRI. Murphey stated that there as no indication of a muscle strain and that "it is my opinion that the history and MR imaging descriptions are more compatible with the Winstrol injection as the inflammatory component is prominent by report.” The committee also asked the Toronto Blue Jays’ team doctor and two trainers (from 1998) whether they thought a vitamin B-12 shot could cause such a reaction.

“Dr. Taylor told the Committee that this was unlikely. He stated that he had given close to 1,000 vitamin B-12 injections in his medical career and that he had never seen a complication like Mr. Clemens's.45 Mr. Craig told the Committee that he had never seen a side effect like Mr. Clemens's from a vitamin B-12 injection in almost 30 years as a trainer.a6 The assistant trainer, Scott Shannon, in a career of almost 20 years, also said he had never seen a vitamin B-12 injection cause this kind of reaction.”


2. MR. CLEMENS'S TESTIMONY THAT MR. MCNAMEE INJECTED HIM WITH LIDOCAINE

Clemens claimed that McNamee had injected him in his lower back with the painkiller, Lidocane, in 1998. Clemens stated that the shot gave him “comfort for about 2 days.” McNamee denies ever giving anyone a shot of lidocane.

Committee staff consulted medical experts, including Dr. Frederick W. Burgess, the former president of the American Academy of Pain Medicine, about the effects and dangers of lidocaine injections. Dr. Burgess provided a letter to the Committee stating that the numbing "anesthetic" effect of lidocaine would last for a maximum of two hours, rather than two days as Mr. Clemens described. Dr. Burgess also informed the Committee that injecting lidocaine into the lower back is a difficult procedure with significant medical risks. Improperly administered, a lidocaine injection in the lower back can cause nerve damage and paralysis and, if injected into a blood vessel, can trigger a heart attack.

Clemens said that he allowed McNamee to administer the shot because he was a PhD. McNamee’s (apparently illegitimate) degree was in behavioral science and he did not acquire it until after Clemens alleged the injection took place.

The Blue Jays doctor and head trainer agreed that it didn’t “make sense” and that only a doctor would administer a lidocane injection due to the risks involved.

According to medical reports Clemens received only one lidocane injection which was in 2005 while playing for the Houston Astros and occurred under vastly different circumstances.

"When Mr. Clemens received his October 2005 injection, he was under anesthesia, and the injection was administered by a specialist using X-ray fluoroscopy.”

3. MR. CLEMENS'S TESTIMONY THAT TEAM TRAINERS GAVE HIM PAIN INJECTIONS

In his deposition Clemens said that he received painkller injections from trainers from each and every team (Boston Red Sox, Toronto Blue Jays, New York Yankees and the Houston Astros) which he had played for. Clemens was asked specifically about each team.

Trainers from the Red Sox, Blue Jays and Astros all denied ever giving Clemens an injection of pain medication. Trainers from the Blue Jays and Red Sox added that it was against team policy for trainers to administer those types of shots.

The Yankees were the club that allowed trainers to administer painkiller injections and did so, but only once and with "a light dose of Toradol."

4. MR. CLEMENS'S TESTIMONY THAT HE RECEIVED MANY VITAMIN B-12 INJECTIONS

Clemens told the committee that he received 4-6 B-12 injections from McNamee between 1998 and 2001. He went on to say that he received “at least 25, maybe 50" B-12 injections from team doctors or trainers throughout his career.

The Red Sox, Blue Jays and Astros all said the kept records of all injections and the only documented case where Clemens received a B-12 shot was the one given to him by Blue Jays team doctor in 1998. The Yankees head trainer said that he “had never provided Mr. Clemens with a vitamin B-12 injection, and that he had no knowledge of any other officials with the Yankees providing him with a vitamin B-12 injection.”

5. MR. CLEMENS'S TESTIMONY THAT HE NEVER DISCUSSED HGH WITH MR. MCNAMEE

During his deposition, Clemens repeatedly denied ever having a conversation with McNamee about human growth hormone.

Committee Staff: Did you ever speak with Mr. McNamee about human growth hormone?
Mr. Clemens: I have not.
Committee Staff: Never asked him any questions about it?
Mr. Clemens: Never asked him.

Later he told the committee that he had talked to McNamee about hGH and that it was “about some elderly men… one guy… had a curve in his spine… and then later on in the show he was able to play golf.”

Again later in his deposition, when asked if a family member had ever used human growth hormone, Clemens said that McNamee had injected Clemens’ wife, Debbie in 2003. Clemens denied knowing about the injection until after his wife had an adverse reaction. He did say that he had two conversations with McNamee about that injection, one the night of the injection and another the following day.

Mr. Clemens testified that he had no conversations with Mr. McNamee about HGH in the same proceeding in which he later described two specific conversations with Mr. McNamee. As a legal matter, this may affect whether the statements meet the legal definition of perjury or false statement. They are evidence, however, that Mr. Clemens affirmatively sought to mislead the Committee. If the Committee staff had not asked Mr. Clemens whether a family member had used HGH, the Committee would never have known about Mr. Clemens's conversations with Mr. McNamee.

The committee also found it “implausible” that Clemens “neither called the doctor nor investigated the effects of HGH after learning that his wife was experiencing circulation and other problems from the injection.”

6. MR. CLEMENS'S TESTIMONY THAT HE WAS NOT AT JOSE CANSECO'S HOME FROM JUNE 8 TO JUNE 10, 1998

In the Mitchell report and during his testimony and deposition, McNamee described a barbeque/party at Jose Canseco’s house where McNamee “observed Clemens, Canseco, and another person he did not know meeting inside Canseco's house." McNamee believed Clemens had acquired the anabolic steroid, Winstrol (Stanozolol), at the party, and that shortly after he first injected Clemens.

Clemens told committee members 8 times during his deposition that he wasn’t present at the party. When asked if he was at Canseco’s house between June 8 and June 10, 1998, he said “No.”

Clemens’ nanny told the committee that Clemens was at the house with the family, though she said she couldn’t remember a party.

“I remember Roger coming into the house… when… we got there…. Mr. Jose Canseco was very proud of his house, and he was showing us around. At that time, yes, yes, I saw Roger, he was with us looking at the house around.”

After the deposition but before the hearing, Clemens’ lawyer was informed that there may be a photograph of Clemens at the party. During his testimony at the hearing Clemens said that he was "not totally positive” that he wasn’t at Canseco’s house after playing golf.

The committee staff asked Clemens’ attorney to refrain from contacting the nanny before the staff could speak to her. In the three days between when the committee asked Clemens for the nanny’s contact information and the time they turned it over, Clemens met with the nanny at Clemens’ home. Clemens asked her what she recalled form the June 1998 trip to Florida and the party at Canseco’s. According to the nanny’s deposition, Clemens said, "the reason you don't remember that party is because I wasn't there."

7. MR. CLEMENS'S TESTIMONY THAT HE WAS "NEVER TOLD" ABOUT SENATOR MITCHELL'S REQUEST

In his deposition, Clemens said (6 times) that he had no idea that Mitchell had sought an interview with him.

"The fact of the matter was I was never told by my baseball agent/attorney that we were asked to come down and see Senator Mitchell"

"I was never told by my baseball agent or the Players Association that Mr. Mitchell requested to see me. Those letters or phone calls never came to me."

During his 60 Minutes interview Clemens said that he didn’t speak to Mitchell because his “counsel” advised against it.

Charles Scheeler, the lead counsel for the Mitchell investigation testified that Clemenes not only was asked to meet with Mitchell (via the Players’ Association) but that he was sent as letter “in which Senator Mitchell stated that we had evidence that Mr. Clemens had used performance enhancing substances ... during the period of 1998 through 200I.” Mitchell sent an second letter to players offering them an additional chance to respond to allegations against them.

Pettitte, represented by the same agent (the Hendricks Brothers) said he was told by said agent that Mitchell wanted to interview him “regarding allegations of Mr. Pettitte's use of human growth Hormone”

 
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