How the Justice Department misplayed the steroids investigation.

The law, lawyers, and the court.
Jan. 14 2008 1:54 PM

Foul Ball

How the Justice Department misplayed the steroids investigation.

(Continued from Page 1)

It's been suggested that the DoJ didn't prosecute players because the evidence against them was weak. But if the Mitchell report is accurate, the government has solid possession cases against a number of players based on precisely the sort of evidence—dealer testimony supported by shipment and payment records—upon which garden-variety drug cases are made every day. And given the nature of the distribution networks involved here, a plausible case could be made for felony conspiracy charges against some players.

Even more troubling than the absence of player indictments is the degree to which prosecutors skirted the boundaries of traditionally permissible conduct in their treatment of the players they did not charge, and of their own cooperating witnesses. Police and prosecutors have unique powers to investigate and prosecute the small sliver of particularly undesirable behavior the law defines as "crime." Use of the government's criminal powers for other purposes—like "cleaning up" baseball—is always pregnant with the potential for misuse. A mere allegation of criminal wrongdoing coming from government sources can wreck a life or a career. If formal charges are filed, the defendant will at least have his day in court to admit or attempt to disprove the government's case. But if the allegation comes in a report issued by the private sector, but engineered by the government, the reputational damage is done, and the defendant has no forum in which to contest it.

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For precisely this reason, by law, federal grand jury proceedings are secret to protect the reputations of those who are investigated but never prosecuted. Historically, Department of Justice policy has been even more sensitive to these interests. In public filings and proceedings, the DoJ's Principles of Federal Prosecution require prosecutors to "remain sensitive to the privacy and reputation interests of uncharged third-parties," which "means that, in the absence of some significant justification, it is not appropriate to identify … or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue." (The italics are mine.)

Technically, the deals requiring McNamee and Radomski to cooperate with Mitchell probably don't violate grand jury secrecy laws, because those laws bind prosecutors, agents, and grand jurors, but not witnesses like McNamee and Radomski. And technically, those deals might not have violated DoJ policy on uncharged third parties, inasmuch as Clemens and other players weren't actually named in official filings or in a federal courtroom. But using plea bargaining leverage to require witnesses to divulge to Mitchell the names of people the Justice Department never intended to prosecute surely violated the purposes of both grand jury secrecy law and DoJ policy.

With the authority granted prosecutors to make life-altering accusations goes the obligation to prove them. Here, the U.S. Attorney's Office made no individual assessment of the strength of the allegations by Radomski and McNamee against dozens of players. It never winnowed the provable cases from the mere rumors or unprovable assertions. Instead, prosecutors forced flipped witnesses to reveal everything they knew or had heard to Mitchell and walked away from the responsibility to prove any of it. 

In addition, forcing cooperators like McNamee and Radomski to talk to a private party set them up for defamation suits. It's fine for a prosecutor to require a cooperator to divulge everything he knows, provable or not, in the privacy of the debriefing room, because, in general, only the provable parts will become public, and then only in official proceedings. But McNamee and Radomski were given a Hobson's choice—refuse to tell Mitchell everything they knew and go to jail, or tell him everything, including the very possibly true but unprovable bits, and, once Mitchell went public, get crushed by rich guys' lawyers. Not an outcome likely to encourage others to come forward.

Cleaning up baseball is a laudable objective. But so far the DoJ has failed to explain why normal rules and policies governing criminal investigations should be ignored to achieve it. Congress should insist on an explanation.

Frank Bowman is a law professor at the University of Missouri-Columbia.

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