SEND IN THE CLOWNS: THE TRAGIC-COMEDY OF CONGRESS' STEROIDS HEARING

How does one explain the lurid charade staged in Washington this week, other than to observe "Hell hath no fury like a Congressman scorned." It would seem Roger Clemens provoked the Capitol Clowns because he dared to question the unimpeachable integrity, the scrupulous fairness, sage wisdom, the Infallibility of their former crony, George St. Mitchell!

Well, now that Chairman Henry A. Waxman has defended Pope Mitchell's Bull against recusant Roger Clemens and his circle of wicked apostles, we can expect Congress, mercifully, to conclude its steroids Inquisition, once and for all.

After the Chairman's latest comments, one certainly hopes so. Evidently Chairman Waxman enacted the role of Grand Inquisitor with such relish and brio he may have antagonized his own constituency. [1] He says he now regrets convening the hearing in the first place. On Thursday, Congressman Waxman had the following epiphany: "I didn't think it was a hearing that needed to be held in order to get the facts out about the Mitchell report. I'm sorry we had the hearing. I regret that we had the hearing."

Read: I'm sorry that my Hollywood constituents saw in my hectoring zeal a disturbing echo of HUAC and its interrogation of celebrities in the 40's and 50's; even though Roger Clemens, another selfish, inarticulate, rich, white male who votes Republican, happens to occupy the diametrically opposite pole of the political spectrum.

Watching Waxman, one almost waxes nostalgically for a good old communist witch-hunt. At least when HUAC was trying to decide between the conflicting stories of Whittaker Chambers and Alger Hiss, Congress had charges of treason to weigh and national security to protect. Yet as Marx once observed, History always repeats itself, first as tragedy, then as farce. And who better than the American Henry James celebrated for his "sense of humor" to appreciate the grotesque comedy of what unfolded this week in Washington. Anarchy besets Iraq, al-Qaeda regroups in Pakistan, an economy falters and Congress stages an elaborate theatrical spectacle that proves nothing, benefits no one, and serves no greater public good.

For how, really, did Congress think a a single American would benefit from a Congressional investigation of the credibility of Brian McNamee, the veracity of Roger Clemens, and the validity of the Mitchell Report? That is, a single American, of course, other than George Mitchell, a DLA Piper Rudnick lawyer, IRS Agent Jeff Novitsky, U.S Attorney Matthew Parella, Brian McNamee or everyone else connected to the Mitchell Report whose reputation, probity, and motives Roger Clemens' vehement denials have impugned.

And therein lies the tragedy beneath the farce, the graver implications Congress' theatrical comedy poses for the audience.

Indeed, the collaboration between George Mitchell, major league baseball, federal agents and U.S. prosecutors raises troubling questions that should unsettle all Americans-- questions that had the Committee really been concerned about the public's interest it would have investigated or at least, broached.

Much outrage has been wasted on the conflict of interest underlying Mitchell's ties to baseball's ownership, in general, and the Boston Red Sox, in particular. Criticism that's valid and yet misplaced. It obscures the far more ominous implications Mitchell's former titles as a U.S. Attorney, U.S. federal judge, and U.S. Senator posed for players and now poses for all Americans.

THE MITCHELL REPORT'S OWN PRIVATE FEDERAL PROSECUTOR
One of the questions Waxman should have asked was how and why Mitchell could capitalize on the power and resources of the U.S. government and its criminal investigative arm in an inquiry a private industry commissioned. After all, the full title of the committe Waxman chairs is , "The House Committee on Oversight and Government Reform." Why then didn't the Committee perform its assigned role and oversee the conduct, in this instance, of the U.S Justice Department. More specifically, what legal basis did U.S. attorney Matthew Parella and Federal agent Jeff Novitzsky have for,

(1) placing the witnesses, testimony, and evidence the Federal government can gather only within circumscribed Constitutional and judicial mandates at the disposal of George Mitchell and MLB, a private entity, beholden to neither?

(2) What legal basis did they have for disseminating incriminating evidence about the drug use of individual players not subject to a criminal investigation but nonetheless facing sanction by their employer, MLB?

(3) And in do soing, what basis did they have for violating the legal and constitutional obligations a Federal prosecutor has to obey in a criminal proceeding, such as furnishing a defendant's lawyer with all the inculpatory evidence they've accumulated before the government can try or sentence him; and then permitting him the opportunity to confront his accusers and to rebut their testimony.

• For all baseball writers' effusions about what a great American George Mitchell is, it appears the the former Federal judge and U.S attorney doesn't think too highly of the Constitutional principles American cherish because he certainly didn't heed them in his steroid inquiry. For example, he supposedly invited players to appear and to defend themselves once someone had incriminated them. However, Mitchell refused to inform the players and their counsel of the specific charges' substance or to allow them to confront their source, as the Constitution would have obliged a government prosecutor. True, the Constitution didn't require this of him; it doesn't regulate a private industry's investigation. However, Congress and the press then shouldn't allow this great American paragon to pretend his inquiry was scrupulously fair and unimpeachably defintive either.

(4) What legal basis or practical justification did Federal prosecutors have for excusing Kirk Radomski and Brian McNamee (and/or extenuating their sentence) for the alleged crime of selling and distributing illegal drugs simply because they cooperated with George Mitchell in MLB's private investigation and because they implicated players for the less culpable and less severely punished transgression of illegal drug use?

Of course, for their cooperation, Federal and State prosecutors reward defendants (and/or suspects) with immunity or lighter sentences all the time. Their Faustian bargains with the guilty is supposed to serve the greater good. They co-opt the drug runner to implicate the drug kingpin. They excuse the hit man to convict his mob and its boss. They pardon the possession of narcotics to curtail its sale. Murder goes unpunished but the government extirpates an entire criminal enterprise. The trade supposedly serves the greater good.

However, when the goverment does the exact opposite, cui bono? Why, that is, did Federal prosecutors trade a seller and distributor of illegal drugs for their mere users? How does the public benefit, morever, if Federal prosecutors reward the cooperating defendants not for the convictions they've won but simply for aiding a private investigative body, The Mitchell Committee, that lacks the power and authority to sanction them. Who is served other, of course, than the Federal prosecutor and agent themselves in the self-aggrandizing publicity and career boost they receive from taking down a celebrity? If we're fortunate, they'll join Henry Waxman in Congress.

THE CORPORATE PROSECUTOR: COMING TO A THEATRE NEAR YOU

Indeed, the zeal with which Federal prosecutors have pursued baseball players, in general, and Roger Clemens, in particular, for using illegal steroids, a preponderantly self-inflicted harm, should worry every American. Witness Brian McNamee's account of his interrogation.

Listen, Brian this is [Assistant United States Attorney Matthew] Parrella-he
goes,"You have three strikes to go to jail." He goes -- he goes, "You know, you're a cop." He goes, "You picked up steroids and you delivered steroids. That's a federal crime." He goes, "And if you lie to a federal agent, you go to jail." He goes, "I'm going to tell you" - my attorney just sat there. He goes, "Yesterday, you took two steps back" -- no. "You have two strikes against you to go to jail. You have one more strike." All right. So, then, they recapped what we talked about that day and then -- the day before. And, then, right away, "So what about Clemens?" "Well, what do you mean?" [IRS Special Agent] Novitzky went on this big tirade because it was the biggest embarrassing thing I've ever heard from anybody. He's trying to tell me that I -- that how can I tell him that I don't know anything about steroids and Clemens with, first of all, what they know and then also I must not be good at what I do because I stretch him and I train him; so if I put my hands on his body, how can I not know that his body's changing by taking steroids. And, then, he threw a piece of paper at me and he goes, "Do you know how many people we've talked to?" Parrella jumped in. He goes, "We know about [sic] more about you than you know about yourself." He goes, "You're going to jail." My attorney just sat there. And they said, "Let's go back to when you first met Clemens in '98." Paragraph 27 of Roger Clemens's defamation suit.

Of course, Roger Clemens has both the money and the public stage to defend himself. The average American citizen does not. More troublesome than the Federal prosecutor's zeal to implicate baseball players, then, is their colloboration with Mitchell's investigation to do so because of the dangerous precedent it sets.

Just imagine what would happen if it's your employer Federal prosecutors assist next time.

[1] I don't live in California's 30th District. But I, a staunch Democrat, for one, would never vote for him following his performance.