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January 16, 2008

Stupid Lawyer Tricks

The Mitchell Report in Congress, Round I

by Derek Jacques

There's nothing to feed human cynicism quite like watching Congress at work. So please pardon me if I get some of it out of my system at the outset: the big lesson that comes from yesterday's spectacle is that, if Congress is upset with you, they'll be much, much, calmer and conciliatory if the next time you come to them, you show up with a former member of congress on your side, after having reportedly backed up a truckload of money to his law firm. That seems to be the difference between congresspersons scolding you well into the evening hours on the one hand, and them hailing you as an outstanding American who gets to go home in time for an early supper on the other.

Forget the 20 months spent investigating and creating the 400-page Mitchell Report; yesterday's hearing was where George Mitchell really earned his fees. Unlike most everyone else involved in the hearing-Bud Selig, Don Fehr, even the members of the House Committee on Oversight and Government Reform-Mitchell was absolutely smooth in his presentation and his responses to questions. He conducted himself with the confidence of a political alpha dog, the kind of guy who can make legislative in-jokes ("Amnesty is a loaded word in politics…") when he's not busy reminiscing about the Irish peace process.

The response from the Committee was fawning. To call the questions they asked Mitchell softballs would be insulting to beer-league players all over the world-softball pitchers actually try to get the opposition out. No, the questions here were carefully placed on a tee for Mitchell to knock out of the park, with the possible exception of Chris Shays' rambling statements about how thirty or so years' worth of labor law shouldn't apply to baseball players. At the end of that one, much of the viewing public must have wondered if we need mandatory random drug testing of members of Congress.

Even though Mitchell was on his way to catch a train by the time Bud Selig and Don Fehr took the stage, the effect of Mitchell's presence still lingered in the room, protecting both men. Selig usually gets grilled by Congress until he has the feverish sheen of Humphrey Bogart in Treasure of the Sierra Madre, but this time was instead treated quite deferentially. Fehr stood to get taken to the woodshed for the players' general lack of cooperation, and he get a few pointed questions, but he still suffered nothing close to the debacle that he and Selig went through a few years ago, when they couldn't give a straight answer about whether or not the sport had a written drug policy.

Leaving Selig and Fehr aside for the moment, the surprising thing about Mitchell's testimony was the complete lack of any criticism of the report, or even much curiosity about how it was made. Early on, there was a short question about why the Commissioner's office got the report in advance, and the MLBPA didn't, but that one died on the vine as Mitchell repeated, virtually verbatim, the confidentiality rationale given in the report itself. For a moment, Congressman John Tierney started to talk about Therapeutic Use Exemptions and ADD drugs, which looked like it might provide an entrée for Mitchell to explain the decision to restrict his inquiry to only steroids and HGH. But no, Mitchell was off the hook, because stimulants were outside of the scope of his investigation. Some folks don't do windows, but Senator Mitchell doesn't do greenies, although it's hard to see how you could write a history of the use of performance enhancers in baseball without discussing the sport's 50-year reliance on amphetamines.

The questions that really seem to burn Senator Mitchell's hide in his interviews with the press-about whether a person who's employed by one of the major league clubs could really be "independent" or impartial-were nowhere in evidence. Neither were any questions about the way that Mitchell dealt with the players he was trying to persuade to cooperate; it wasn't until Fehr's testimony, after Mitchell had left the building, that Committee members seemed to consider that maybe Mitchell would have gotten more responses from players if he'd simply written to tell them about the allegations they were facing, rather than playing the "come in, and we'll talk about the evidence against you" ambush game.

Overall, everyone in the Committee seemed satisfied with Senator Mitchell's report, even if it wasn't dead certain that all the members had actually read it. They liked the fact that he named names, which, as Rep. Eleanor Holmes Norton put it, was "one of the most valuable parts of your report." Many expressed great admiration that he could compile so much information without issuing any subpoenas or having the power to grant immunity. But there was one line of questioning which, almost by accident, pointed out the report's flaws.

Representative John Yarmuth, after clumsily inserting a plug for Louisville Slugger into the proceedings, asked a relatively simple question. Citing a recent New York Times op-ed that cast some doubt on whether the players named in the Mitchell report actually enjoyed enhanced performance during the time they were allegedly using PEDs, he asked if Mitchell had found evidence that PEDs are really effective. Mitchell's reply was the one time all day that he had to dance around a bit, emphasizing that, "the subject is more complicated than a simple phrase [performance enhancement] represents" before citing unspecified evidence that PEDs worked for some unnamed individuals. (For anyone that's curious, this exchange happens right around the 90-minute mark in the broadcast.)

The point of the story isn't Mitchell's discomfort, but the fact is that after 400 pages so many basic questions are left unanswered by his report. The report doesn't tell you what percentage of players were using which substances over what period of time, and its conclusions-HGH use is on the rise, and use is widespread-are based primarily on anecdotal evidence provided by Kirk Radomski and several distributors associated with him. While the report's purpose was to "give Major League Baseball some closure" by naming Radomski's client list, it's done anything but that. Instead, what the baseball industry has gotten is civil litigation by one of the players named, and now the threat of a criminal investigation against another.

We're left to wonder if things could have been different with an approach that centered more on fact-finding and less on assessing blame. Every time that this issue goes to Congress, data from the National Institutes of Health is cited to describe the use of steroids among the nation's teenagers. The scientists who do this research don't have subpoena power or the ability to grant immunity, but they gather important information about drug use by remaining objective, keeping their subjects' confidences, and earning their trust. Maybe someday we'll learn if that approach would work better than placing a team employee in an adversarial stance to the persons he's trying to gather information about. Maybe then, Congress could ask questions based on facts, rather than scandal. I can dream, can't I?

The biggest news of the day, and I leave it for last because it's a developing story, is that the Committee asked the Department of Justice to investigate Miguel Tejada, on what could be yet another perjury case. You may recall that Tejada first got dragged into a steroids inquiry when Rafael Palmeiro tested positive for PEDs in 2005, only a few months after his finger-wagging performance before Congress in which he categorically denied ever using steroids. Palmeiro (or Palm-airy, as Representative Shays calls him) then pointed his wagging finger at Tejada, blaming a B12 shot he got from Tejada's personal stash for the positive test.

The Committee didn't pursue Palmeiro for perjury, since the positive test came after his testimony that he was steroid-free. But, as a consequence of that inquiry, Tejada testified under oath to Committee staffers about Palmeiro, and claimed that he didn't know anything about steroids, didn't use them, and didn't know any teammates who were users. This testimony is disputed in the Mitchell Report by Mitchell's interviews with Adam Piatt, who said that he provided Tejada with Deca-Durabolin and HGH in 2003. Unlike some of the other accusations in the report, Piatt had corroboration for his claims, in the form of money he received from Tejada. Now, Tejada could claim that the money was for something else-an improvident bet on the scoreboard trivia question, perhaps?-but the proof of payments from Tejada to Piatt makes this more than just a case of he said/he said.

If the Justice Department pursues Tejada, the stakes are pretty high. Unless Tejada is one of the many foreign-born players who have gotten U.S. citizenship in the last few years, he needs a visa or a green card to be in the United States. Since perjury is a crime of dishonesty, a conviction or plea could jeopardize his immigration status, possibly ending his career by default. After all, you can't play shortstop for the Astros if you can't set foot on American soil. Stay tuned to how this one plays out.

Derek Jacques is an author of Baseball Prospectus. 
Click here to see Derek's other articles. You can contact Derek by clicking here

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