Marginal Utility

by Ken Houghton

I have been watching in (somewhat mock) horror as Hillary Rodham Clinton gets triangulated out of the race for the Presidency and Roger Clemens—who for the past ten-plus years has shown the same trends and the same physical changes as Barry Bonds, in a much more fragile position—denies having used steroids.

But if Howard Bryant is to be believed—always an open question—Roger is about to get, well, rogered.*

I believe it was Gerald Wilkins, after "losing" a slam-dunk contest to Michael Jordan when the All-Star Game was in Chicago, who most poignantly observed, "It's difficult to win on the road in the NBA."

If Bryant's description of Wednesday's hearing is correct, Wilkens description applies aptly to Clemens's position :

As titillating, tawdry and undignified as the blood feud between Roger Clemens and Brian McNamee has been, the real showdown Wednesday before Congress is not between Clemens and McNamee, but between Clemens and former U.S. Sen. George Mitchell.

Let me be clear: The Mitchell Report, as it currently stands, is the Black Sox Scandal of the 21st Century. Despite that, as Bryant notes:

When Mitchell, union head Donald Fehr and baseball commissioner Bud Selig testified in Room 2154 of the Rayburn Building on Jan. 15, Mitchell was praised for his "fair and impartial" report, produced under the difficult circumstances of not having the players' cooperation. Mitchell's approach, methodology, findings and conclusions went unchallenged. No member of the committee probed with specific questions about the information gathering process on Clemens, even though each knew within a month that Clemens, and McNamee, would testify before them.

The normally-astute National Law Journal ran an op-ed two week's ago discussing the legend-in-his-own-mind Mitchell Report. It was a relatively balanced piece—certainly better than the ESPN coverage—but it still suffers from an attempt to be "fair and balanced." Especially egregious is this statement, whose sentiment is assumed throughout the piece:

It appears that Major League Baseball needed to have a George Mitchell not only conduct a vigorous investigation but also identify alleged wrongdoers.

The short answer is, well, yes, that would have been a good idea.

Let's be clear: the Mitchell investigation was not "vigorous" and did not "identify" any wrongdoers who were not found by other means.

The bulk of the "report" is based on two New York-based people who worked in the clubhouses of the Yankees (Brian McNamee) and Mets (Kirk Radomski). Note that the links are both to extant court cases that involve public testimony.

Mitchell had no subpoena power. He started by speaking with people under indictment and people they implicated as having dealt with them directly. His information came (primarily) second-hand from the Mcnamees and Radomskis and Jason Grimsley.

The result was by no means "vigourous"—it couldn't be, given the constraints. The result was what Mitchell always does: a report that made his paymasters (in this case, the baseball owners) happy that they had "identified the problem," that it was relatively limited, and that they themselves were not complicit.

And the thing is, Cohen and Gershman know everything I'm saying. While they open with:

Not surprisingly, the credibility of the now-famous Mitchell Report that publicly identified 85 baseball players as having used illegal drugs is about to be tested

they never support the claim in the report. Indeed, the closest they come is to say that it "would have appeared less credible" without including those 85 often-unsubstantiated names. Indeed, Cohen and Gershman are clear-sighted in the true purpose of the report:

It appears that Major League Baseball needed to have a George Mitchell not only conduct a vigorous investigation but also identify alleged wrongdoers. However, given the protocol he chose, there may be innocent victims whose protestations will be heard but, in most cases, not believed.

At least this time, some lawyers know the truth, and are telling it—even if it is by what they do not say. One can only wish Congress had acknowledged the same.

*Sorry, started this yesterday and don't feel like changing all the tenses throughout. But having now seen The Daily Show medley of clips of people discussing Clemens's bum and its bleeding, I don't feel much of a need to change anything else, either.

Labels: baseball, the rule of law