WHEN SENATOR GEORGE Mitchell appeared on Fox News Sunday to discuss his eponymous report that had rocked the baseball world, he bristled when Chris Wallace mentioned that some of Mitchell’s conclusions were based on hearsay. Wallace cited the case where Baltimore Oriole Larry Bigbie ratted out his teammate Brian Roberts based solely on Roberts’s alleged confession to Bigbie that he had used steroids. As the lawyers out there know, this is classic hearsay: A statement, other than one made by the declarant, offered to prove the truth of the matter asserted.
Here’s how Mitchell responded:
The fact is the same thing that you’re now saying about Brian Roberts was, of course, said about the statements about Andy Pettitte and about many others.
Let’s wait and see what happens, Chris. We think that the statements made in the report are truthful. We did the very best we could to verify everything that we could and to get just truthful statements. And so we’ll see what happens.
Even for a former senator, that statement packs a lot of disingenuousness into a small container. Bigbie’s testimony for Mitchell clearly was hearsay, and Roberts trusting a teammate regarding his steroid use was not “against his interest.” There was no defending the inclusion of Bigbie’s statement in the report, not if the report professed to follow the Rules of Evidence.
So instead, Mitchell elided past Bigbie’s hearsay and opted to defend his star witnesses, Kirk Radomski and Brian McNamee, both witnesses of dubious reliability but not purveyors of hearsay. They were the ones who had implicated Andy Pettitte, and no one who knew what they were talking about would attack their testimony as hearsay. So rather than deal with a genuine and obvious flaw in his report, Mitchell set up a straw man to defend a different, more vital part.
THE TESTIMONY OF THE TWO erstwhile trainers to the stars was Mitchell’s smoking gun for many of his allegations. McNamee made the most explosive charge in the reports’ tedious 400 pages–that he had shot performance enhancing substances into Roger Clemens’ Hall of Fame tush on several occasions.
Mitchell’s Fox News Sunday defense of his star witnesses suggested that they could be trusted because, by confessing to illegally providing performance enhancing drugs to pro athletes, they were making admissions against their own interest. But that’s not quite right. The progeny of the trainers’ testimony is something that Senator Mitchell strangely forgot to mention during his appearance on Fox News. Radomski apparently had good reason to be a motivated witness, something the Mitchell Report mentioned and yet the senator has not discussed much during his media blitz:
The U.S. Attorney’s Office has agreed to recommend that Radomski receive a more lenient sentence if it concludes that he cooperated completely and truthfully, including with regard to the information he provided to me.
McNamee’s motivation was a bit more opaque:
Radomski’s motivation for cooperating with Mitchell is clear. Since the report doesn’t address McNamee’s upside, I guess we’re supposed to assume that pangs of conscience and a commitment to good citizenry brought McNamee out of the shadows and into the senator’s embrace. Nevertheless, it’s safe to conclude that both witnesses had ample motivation to give the senator something good.
Interestingly, the two stoolies had different forms of evidence to buttress their respective claims. Reams of cancelled checks and other assorted paperwork accompanied Radomski’s testimony. McNamee’s claims, on the other hand, were supported only by his own recollections.
But what recollections! McNamee was the guy who provided the Mitchell Report with its principal hook–Roger Clemens did steroids. If this “evidence” were to come before a real court, the case never would have gone to trial. It would have been Clemens’s word versus McNamee’s, and McNamee’s motivations would have been suspect. There’s no way a jury could have found Clemens guilty beyond a reasonable doubt.
IT WAS IN A strange way refreshing to hear Senator Mitchell mangling the rules of evidence on Fox News Sunday. One of the complaints many of us have long harbored about three-ring circus quasi-judicial inquiries like the 9/11 Commission or the truly sickening Clarence Thomas confirmation hearings is that their definition of what’s probative and what isn’t tends to change according to the political desires of the inquisitors. Ultimately, these proceedings inevitably produce more heat than light, and serve primarily to get their wheezing gasbag masters a moment in the spotlight.
George Mitchell could have produced a fair report, but the results wouldn’t have been nearly as satisfying or sensational. He could have admitted that he couldn’t adequately police the past ten years. He could have acknowledged that the use of performance enhancing drugs in baseball was pervasive, and he could have prescribed a way forward rather than haphazardly mop up a small corner of the past, relying on dubious witnesses and their oddly timed recollections to do so.
But if Mitchell had opted for that route, he wouldn’t have been able to name Roger Clemens. He wouldn’t have gotten all the headlines that he did, and he probably wouldn’t have even made it onto Fox News Sunday. That wouldn’t have been acceptable.
So what now of Roger Clemens? Clemens may have used performing enhancing drugs, but the Mitchell Report proves no such thing. Senator Mitchell is many things, but he is not a fool. He knows this. And yet he also knows that in his rush to get before the cameras and claim what we can all hope will be his final 15 minutes in the spotlight, he has irreparably tarnished Clemens’s reputation.
One last word–the preceding has addressed but a tiny precinct of the Mitchell Report. But that precinct is indicative of the entire effort’s quality and worth. Senator Mitchell should be ashamed and embarrassed about his work product. Somehow I doubt he is.
Dean Barnett is a staff writer at THE WEEKLY STANDARD.
