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.

Tomorrow, former Sen. George Mitchell will testify before a House committee about his investigation into performance-enhancing drugs in baseball. When they're done listening, members of Congress should ask some hard questions about the relationship between Mitchell's report and the Justice Department criminal investigation that gave him most of his information.

Make no mistake. As a former prosecutor, I am delighted that the DoJ unleashed the bloodhounds of the criminal justice system on drug cheats in baseball. Taken without a prescription, anabolic steroids and human growth hormone are every bit as illegal as cocaine, heroin, or marijuana. Simple equity suggests that the federal government should be just as ready to pursue jillionaire bat-wielding juicers and their suppliers as penniless crackheads and their dealers. More importantly, allowing obviously chemically enhanced cheaters to stand rich, idolized, and unchallenged at the pinnacle of professional athletics increases the likelihood that the legions of young people who long to be sports heroes will emulate their idols and wreck their bodies in the process.

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That said, the Justice Department has mishandled the baseball steroid investigation in two important ways. First, the DoJ is prosecuting, or at least focusing on, the wrong people. The primary targets should be players, not suppliers. At the same time, the U.S. Department of Justice had no business feeding Mitchell, and through him the public, damaging information about players it lacks the evidence or the will to prosecute.

Consider first who is being prosecuted. So far, the government has charged or made plea deals for testimony with those who supplied drugs to players, leaving the players themselves untouched unless, as with Barry Bonds, the player committed apparent perjury. Defenders of this approach, including Mitchell, justify it by claiming it is analogous to customary federal practice in cases involving recreational drugs of going after suppliers, not users. But the analogy is flawed.

Federal prosecutors customarily prosecute dealers rather than users primarily because dealers are considered more culpable. Dealers are the rich, bad-guy beneficiaries of others' weaknesses, while users are destitute victims or inconsequential saps. Dealers affect many people. Users affect only themselves.

The hierarchy of the performance-enhancing drug market for professional athletes is exactly the reverse. The balance of power, money, and culpability lies with the players in their relationships with guys like Roger Clemens' trainer Brian McNamee or former Mets clubhouse attendant Kirk Radomski. McNamee's and Radomski's continued employment in and around the major leagues depended on the favor of players, particularly stars. The nobody suppliers made a few thousand in pin money for supplying the juice. But the real financial gainers were the players: Drugs allowed them to cheat their way into the majors or to enhance and prolong careers worth millions of dollars. If relative culpability is to determine who is prosecuted and who is allowed to go free, it's the players who should be indicted.

The other reason federal prosecutors ordinarily go after dealers, not users, is to have a greater effect on drug markets. But if one really wanted to stop the use of steroids in baseball, which is likely to be more effective—cooperation deals with a few locker room enablers, or the spectacle of big leaguers in prison stripes rather than pinstripes?

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.

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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