A High Hard One

The FBI is expected to make the initial call on whether to open a criminal investigation into whether legendary pitcher Roger Clemens lied about his alleged use of performance-enhancing drugs when he testified at a House Oversight Committee hearing earlier this month.

In a letter sent to the Justice Department today, the chairman and the ranking Republican on the committee, Reps. Henry Waxman and Tom Davis, formally requested that the department "investigate whether … Clemens committed perjury and made knowingly false statements" during the committee's Feb. 13 hearing.

In their letter the two noted that Congress "cannot perform its oversight function if witnesses who appear before its committees do not provide truthful testimony." However, they also pointed out that the committee itself is "not in a position to reach a definitive judgment as to whether Mr. Clemens lied to the Committee. Our only conclusion is that significant questions have been raised about Mr. Clemens's truthfulness and that further investigation by the Department of Justice is warranted. We ask that you initiate such an investigation."

A senior law enforcement official, who asked for anonymity when discussing investigative matters, said that the congressional request will likely bypass Justice Department headquarters and be sent directly to the FBI and a local federal prosecutor's office. There are two leading candidates: the U.S. Attorney's office in San Francisco, which has been conducting a sweeping investigation of performance-enhancing drug use by professional and amateur athletes—and has brought criminal charges against slugger Barry Bonds, among others. Another possibility: the U.S. Attorney's office in the District of Columbia.

The official said that the FBI is likely to make the initial decision as to whether the information supplied by Congress about Clemens's conduct merits a preliminary criminal investigation. Such an inquiry can, if the subsequent investigation so merits, be a prelude to the bureau's and federal prosecutors' deciding to launch a full-blown criminal probe.

The FBI's Washington field office is already conducting a preliminary investigation into whether the Houston Astros' star shortstop, Miguel Tejada, misinformed the committee when it interviewed him two years ago about his alleged use of performance-enhancing drugs, the official said—adding that he did not know how far the FBI has gotten in its preliminary investigation of Tejada.

During Waxman's hearing, members of the Oversight Committee split along largely partisan lines: Waxman and most members of the committee's Democratic majority expressed skepticism about Clemens's emphatic denials of drug use. Many Republicans aggressively questioned the credibility of Clemens's former trainer, Brian McNamee, who told the committee (as well as investigators for Major League Baseball) that he had injected Clemens on numerous occasions with steroids and human growth hormone.

Republican members questioned McNamee so aggressively that his lawyers publicly wondered whether Clemens had used Republican Party clout to somehow influence committee members in his favor; they pointed out that the star pitcher has a long-standing personal friendship with former president George H.W. Bush. Clemens's lawyer denied he had any particular sway within the GOP; the office of former president Bush denied that he had tried to influence anyone on Clemens's behalf.

The partisan cast to the questioning led some to wonder whether Republicans would back the Democrats' request for a Justice Department investigation of Clemens. But Republicans on the committee were eventually persuaded that Clemens should be subjected to further scrutiny because of the damning testimony of the pitcher's longtime friend and former teammate, Andy Pettitte, a GOP source on Capitol Hill said. Pettitte's deposition to the committee at least partially corroborated some of McNamee's accusations against Clemens; in confessing his own use of HGH, Pettitte also said that he and Clemens discussed the use of the drug on two occasions. Clemens has denied the accuracy of Pettitte's account, saying his friend must have "misheard."