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."

In a statement, Clemens' attorney Rusty Hardin said, "The committee's decision is unwarranted and not supported by the facts. Fortunately, we now move from the court of public opinion, where there are no rules, to the court of law where the rules very specifically level the playing field. Whether it is in a criminal investigation or the upcoming civil trial, what has been a frenzied rush to judgment will be replaced by a careful and unbiased review of all of the evidence. ... Roger will continue to fight these false allegations with every ounce of strength he has."

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.