When we last looked in on the Roger Clemens case, the ex-hurler of the Yankees was being railroaded by Congressman Henry Waxman. The year was 2008. The great pitcher was before a hearing that was so pointed against one individual that we suggested Congress was violating the prohibition against bills of attainder. Such bills are actions by a legislature to punish an individual — historically, in England, involving capital punishment. Bills of attainder are notorious, and they are outlawed at America in a Constitution that couldn’t be plainer.
This is true, incidentally, even if Mr. Clemens asked, as some suggested he did, for a chance to clear his name before Congress. Of the Constitution, we noted: “It doesn’t say no bill of attainder shall be passed unless a baseball star asks for it. It says no bill of attainder shall be passed, period; in other words, that Congress shall not act as a prosecutor against an individual. That, inescapably, was what Mr. Waxman’s House committee was doing yesterday. The fact is that we don't know who did what in respect of steroids, and Congress isn't the place to find out.”
Now, it turns out, a court of law may not be the place to find out either. After dragging Mr. Clemens in to testify before Congress, the Congress turned him over to the Justice Department, which sent him over to a grand jury, which handed up a bill charging that he lied to and obstructed the Congress. When it got to trial, the prosecutors — desperate for a win — twice disobeyed the order of the federal judge, Reggie Walton, not to introduce hearsay evidence. If the prosecution were a pitcher, it would have been ejected from the game for trying to bean the batter. Instead, Judge Walton declared a mis-trial.
By our lights, this whole question has been so tainted in our eyes by the behavior of Congress that the right thing is to just drop it altogether now. Our sentiments are with the celebrated baseball columnist of the Sun, Tim Marchman, who told us this afternoon in respect of Mr. Clemens: “He probably juiced, he probably lied, and he’s probably the greatest pitcher who ever lived. It would be nice if it there were an easy way to separate those things from one another, but there isn’t, and anyway it’s a job for baseball historians, not prosecutors.”