Tuesday, January 15, 2008

DoJ media ploy on steroid investigation rightly decried as 'foul'

Via Sentencing Law & Policy, at least somebody in the legal community agrees with me that the US Department of Justice shouldn't have used threats of prosecution to force uncorroborated public accusations against Roger Clemens and other big-league baseball players.

Writing in the online magazine Slate ("Foul Ball," Jan.14), law prof Frank Bowman declares that "the U.S. Department of Justice had no business feeding [Sen. George] Mitchell, and through him the public, damaging information about players it lacks the evidence or the will to prosecute."

While I disagree strongly with Bowman's complaint that more players haven't been prosecuted, his second main point captures perfectly why and how the Justice Department misused prosecutorial resources on behalf of the Mitchell report. He writes:
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.)
Of course, that's exactly what the feds did in their treatment of the informant accusing Clemens in this case, Brian McNamee. Bowman's analysis also demonstrates how the coerced informants relied upon in the Mitchell report were hung out to dry by prosecutors in ways that don't usually happen in more typical, less PR-driven prosecutions:
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.
Bowman concludes that Congress should formally investigate the DoJ's misuse of authority on behalf of the Mitchell report, major league baseball, and by extension the media. I would add that Congress should do so in lieu of holding more hearings about steroid use in baseball.

In fact, make me philosopher king and I'd say Congress should then continue Bowman's prescribed investigation into law enforcement practices with a full-blown Congressional query into steroid use in law enforcement, a subject with much more significant public policy implications than steroid use by athletes.

See prior, related Grits posts:


Anonymous said...

Add to the list - investigations of steriod use in the military. We all know "all is fair in love and way", but do we as a society want to go on record that our military is steriod free and therefore our enemy should also avoid the use of these drugs?

At the end of the day, we need to decide where we really stand on this issue.

Gritsforbreakfast said...

Good point, and we've got the same issue with military contractors, too. There's a lot of hypocrisy in who they've chosen to go after here that just doesn't sit well with me.

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