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Brian McNamee's memory was pretty good, and one of the things he remembered was sitting by the pool eating a sandwich watching a woman in a peach bikini (with green in it) and board shorts, chasing after one of Roger Clemens's kids at the barbecue at Jose Canseco's house. He asked around and found out she was the nanny for Clemens's kids. “You can get her,” McNamee told Congress during his deposition. “If you want to talk to her, her name was Lily,” McNamee said. “They left on bad terms. She worked for him for 14 years.” Congress couldn't resist. Whether or not Clemens had attended the barbecue-where he supposedly met with a guy about steroids-had become one of the most radical discrepancies between McNamee's sworn statements and those of Clemens.
And so the committee investigators contacted Clemens's lawyers on Friday, February 8, to ask for the nanny's name and contact information, and continued to make similar requests throughout the weekend. It seemed a simple and straightforward appeal. But one day passed, and then another, and Hardin still had failed to produce the requested information.
The woman who'd been the nanny for the Clemens children, Lily Strain, had grown close with the Clemens family during the years she worked for the pitcher and his wife. She had traveled with the clan and had been there when the boys had taken their first steps and learned to ride bikes. She loved them as if they were her own family. Strain had left the job in 2001-not on bad terms, she said, but to spend more time with her children and grandchildren. It wasn't easy to leave the job; it paid well and she found it difficult to be involved in the boys' lives on a part-time basis. Strain decided it would be best if she made a clean break. Debbie had sent flowers when Strain's mother died, and the occasional card or note. Strain appreciated the gestures, but it was easier to keep her distance.
Strain was surprised to get a phone call that Sunday from Roberto, a man she remembered from the years she'd worked for Roger and Debbie. Roberto was an employee of the Clemens family, and he told her that Clemens had an urgent matter to discuss with her. She came to the family's suburban Houston compound that afternoon. It was great to see Roger and Debbie, and to hug the kids she had helped raise. Debbie Clemens's mother, Jan Wilde, was at the house, and so was Debbie's brother, Craig Godfrey. She had missed these people, and it was great to catch up after all those years. Clemens seemed happy to see Strain too, but he had more pressing matters on his mind. He told her that Congress was looking into the allegations about him in the Mitchell Report and that investigators would contact her about a party at Jose Canseco's home. The party, he told her, was in June 1998, right before she went to a luxury resort called the Cheeca Lodge with Deb, Craig, and the boys. Did she remember the trip to the Cheeca Lodge? Strain remembered the trip. She also remembered spending time at the Cansecos' place. She remembered tagging along as Canseco gave Clemens and his family a tour of the home-who would forget a spread like that? She remembered staying at the home with Debbie, Craig, and the kids that evening, but she didn't remember a party.
“While I was there, I know that it wasn't a party, it was just the kids and I and Greg [Craig Godfrey], and we were all in the pool,” Strain would later say. “I would have remembered the party.” There were varying accounts of who was at the party from just about everyone who attended, including those of McNamee, Clemens, Jose and Jessica Canseco; Jose's old friend and former coach, Glenn Dunn; and several Blue Jays players. McNamee remembered that Roger showed up with Debbie after having played golf that morning, Debbie still in her golf clothes. She had been in a foursome at Weston Hills Country Club that included her husband, her brother Craig, and Clemens's friend, James Clodfelter, who was the member at the club and had hosted the group. They had teed off at 8:58 a.m. sharp. McNamee testified about Debbie and Jessica Canseco comparing their breast jobs. He remembered Clemens and Canseco huddled with a “short guy” who looked like a “muscle guy.”
Clemens remembered one thing for sure: He wasn't at any party. He may have stopped by the house after he played golf but he didn't go to a party. “I wasn't at this party that he had. I could have gone by there after a golf outing. But I was not at this party,” he had testified.
Jose Canseco said Clemens was not at the party. His wife, Jessica, couldn't remember. Dunn remembered the barbecue quite vividly and seemed to make the same distinction as Clemens about Clemens's having stopped by the house but not during the party, which lasted about two hours, he said, beginning at about noon. Dunn said the Blue Jays arrived in the team bus and specifically recalled that Clemens was not there. He said, “Roger was not at the barbecue.” He remembered Canseco complained during the function that “Roger was playing golf” and that Clemens came to Canseco's house after golf, but was there only briefly. According to Dunn, by the time Clemens arrived at Canseco's, the team function had ended and the bus carrying the Blue Jays players had already departed for the stadium. Dunn said he spoke with Clemens before Clemens left with Canseco for the stadium. He remembered that Clemens arranged to “have me take his two boys to the game . . . Jose drove Roger to the ballpark . . . I followed in a separate car with my son and Roger's two boys.” Given all these conflicting stories, the committee hoped Strain would be an independent, impartial witness. But they were disappointed.
During her visit at Clemens's house, her former employer reminded Strain that the reason she didn't remember the party was because Clemens was not there-he had been playing golf. That may have been true; she knew Clemens played golf whenever he got the chance. But that was none of her business. She was paid to watch the kids, not monitor his schedule. Clemens again told Strain that the congressional investigators would contact her soon. “Tell the truth,” he urged her. “Don't be afraid.”
By late afternoon that Sunday, the Oversight and Government Reform Committee investigators had become frustrated and more than a little suspicious. Hardin and Breuer continued to drag their feet in providing the nanny's contact information, and at 5 p.m., a staff member made yet another request for the name and phone number. This time, he asked the lawyers to refrain from speaking to the nanny until the committee had interviewed her. By then, Jim Yarbrough, the investigator from Hardin's office, had already called Strain, not long after she met with Clemens. He also asked Strain about the 1998 visit to the Canseco house, and he urged her to tell the truth when Congress called. Strain was happy to help. “I'm willing to do whatever I can to help, because he treated everybody-he treats everybody like family,” Strain said about Clemens. “and that's why if there's anything that I can do to help, I will.”
Hardin and Breuer finally provided Strain's name to the committee on Monday, February 11, three infuriating days after the investigators requested the contact information. The committee conducted a telephone interview with Strain the next day in which she said, among other things, that she doubted she would be wearing a bikini-that wasn't her style. Waxman was not happy when he learned that Clemens and Yarbrough had gotten to her first.
Hardin was already on Waxman's bad side. On Sunday, The New York Times had quoted Hardin taking shots at BALCO investigator Jeff Novitzky in a story that predicted Novitzky would attend the looming hearing. To Hardin, that was proof that the agent was involved in some kind of conspiracy to railroad Clemens.
“You know what? He does not have a sacred mission from God to mess up everybody's life,” Hardin said of Novitzky, and then added: “I can tell you this. If he ever messes with Roger, Roger will eat his lunch.”
Waxman immediately fired off a letter that called out Hardin for his tough- guy talk. “Under one interpretation it can be seen as an attempt to intimidate a federal law- enforcement official in the performance of his official duties,” Waxman wrote, asking Hardin to clarify the statement. “Given your long service as both a prosecutor and a private attorney, I trust you did not intend your comments to be a signal that there could be adverse repercussions to a federal official.”
Waxman's rebuke left the usually blustery Hardin chastened. “I lost my cool,” he admitted. “It's not a very judicious statement. This is the frustration of what these guys are doing.”
With the hearing just days away, Hardin knew his team was losing this battle on several fronts. He predicted that Clemens would wind up as the target of a federal investigation, just as Miguel Tejada had.
The phone number of the nanny wasn't the only piece of information that the committee had trouble extracting from the Clemens legal team. As of Sunday, February 10, the committee had been unable to persuade Hardin and Breuer to share the MRI results, and was considering using a subpoena to get them.
The MRI report had been referenced in Clemens's 1998 medical records from the Blue Jays (the same records that dealt with the palpable mass on Clemens's ass). But at the time of Clemens's deposition on February 5, the committee hadn't seen it. “There is one outstanding medical record regarding the abscess, which is the MRI report, which we would like to get,” Barnett said during the deposition.
“We got that presented yesterday,” Breuer had answered. “Yesterday evening.”
Now nearly a week had passed, and the Clemens team was still hoarding the document, just as they had withheld the nanny's name and number. The hearing was approaching fast, and the committee was getting angry.
This was exactly the kind of lollygagging that Mark Paoletta would never have permitted the McNamee team to engage in. From his years with the House Energy and Commerce Committee, he knew that congressional investigators had little patience for such tactics.
Countless white- collar defense lawyers had been dismissive of his document requests, their instincts telling them to fight and resist because that's what they did in federal courts. That's why Paoletta had a Power-Point presentation that he showed to clients who might not be used to congressional probes. One of the slides showed a street sign: “one way” it said.
“There ain't a judge around here, guys, and this is going to play out a lot more publicly,” Paoletta would tell his clients. “There's no right to call witnesses, no right to cross- examine. There's no recourse to a judge to try to block or get limits. There's nothing on a protective order or anything under seal.”
It wasn't that Paoletta advocated rolling over, but he knew that if you provoked a congressional committee to get aggressive, there wasn't going to be a judge around to save a client from having his or her dirty laundry aired before the cameras. Waxman's committee (like the one Paoletta had worked on) didn't need to go to a judge, and if they were provoked to issue
subpoenas, they might not be as nice.
Ultimately, Barnett didn't need to get Waxman to issue a subpoena. Just informing counsel for Clemens that they were considering “stronger options” than a courteous request did the trick, and finally, on Monday, February 11, the committee received the coveted document: a July 31, 1998, MRI report concluding that while there was no evidence of a “ well-defined abscess” in Clemens's right buttocks, there was a pocket of fluid deep within the subcutaneous fat that was “likely related to the patient's prior attempted intramuscular injections.”
The committee almost immediately turned the MRI report over to Mark Murphey, one of the top MRI experts in the country, who worked at the Armed Forces Institute of Pathology. The committee redacted Clemens's name from the document, and asked Murphey for his expert assessment. On Tuesday, February 12, Murphey responded with a report that the injury was consistent with a Winstrol injection.
Murphey was giving the committee only what knowledgeable sports doctors considered the likely explanation. Back in New York, Dr. Lewis Maharam, the medical director for the New York Road Runners and the chairman of the Board of Governors of the International Marathon Medical Directors Association, basically scoffed at the idea that a B12 shot could cause an abscess. “When sports doctors see butt abscesses in professional athletes, we know it is most likely due to an oil- based injection,” Dr. Maharam said. “Anabolic steroids are oil- based. The oil does not allow 'bug fighters' to get to germs from a dirty injection. The infection gets walled off. Therefore, an MRI showing abscesses is a very likely result of steroid injections. An old saying in medicine is: when you hear hoofbeats, you think of horses first before zebras.”
It was February 12, a day before the hearing, and Brian McNamee's lawyers turned on him in a way that left him angry, confused, and deeply insulted. While the investigators for the Committee on Oversight and Government Reform were trying to talk to the elusive nanny, McNamee was taking abuse while sitting in a leather swivel chair at a massive rectangular table in a 12th- floor conference room at the D.C. law offices of Dickstein Shapiro. His lawyers were simulating the hearing. Pretending to be hostile members of Congress, they sprayed McNamee with accusations, sanctimony, and derision. McNamee was getting angrier by the moment. So this was supposed to be pro bono?
McNamee had come down to the capital that Tuesday morning with his New York lawyers and camped out in the 12th- floor conference room at Dickstein Shapiro to prepare for the next day's hearings. If McNamee thought Novitzky and Parrella had been unrelenting, and the deposition somewhat grueling, the simulated hearing was a whole different thing-some kind of legal boot camp.
“We went through what a typical hearing would be. We had some questions that we had typed up and came up with,” Paoletta said. “We tried to play the part. That's called a murder board. To prepare your client, you want to be much tougher on him than what he will face in the hearing. You want him to understand what is going to happen in this hearing, to know what he is going to say in response to every conceivable question.”
Earl Ward, Richard Emery, and Debbie Greenberger sat across the table from their client and scowled contemptuously. Paoletta and one of his Dickstein colleagues, Andrew Snowdon, sat across from McNamee too, making for a Murderers' Row on the murder board.
“What the fuck are you talking about!” yelled one of them when McNamee spoke.
“That doesn't make sense!” hollered another.
It was murder, all right. Paoletta channeled all his years of experience with congressional hearings. He had spent a decade setting up inquisitions of CEOs, and felt he was pretty good at it. “It's easy to slip into my old role, ask questions, and say sort of snide things,” he said. “Even snider than the members might say. You want to make comments, or say, 'I don't believe you.' Or, 'You keep saying . . . !' Or bring up unrelated things. Bring up a newspaper story. You just want to keep trying to get under their skin, so that they actually do react, and then they've gone through it,” said Paoletta.
“It was a really grueling exercise, and we really gave it to him,” added Ward. McNamee's deposition performance had left Ward and Emery worried, wondering if their client would wilt under the brutal glare of an agitated committee.
“We were pricks beyond belief to him,” Emery said later. “We really beat Brian up. And he got very angry. And we said, 'You're going to be more angry tomorrow.' It was a disdainful and nasty cross- examination. He could see for himself how bad he looked. And he took that and ran with it.”
The lawyers coached McNamee on the importance of brevity. His rambling in the deposition had already made him vulnerable to attacks; the committee members could eviscerate him for inconsistencies in his testimony.
One issue that kept rearing its head was the nanny, and here Paoletta's stature and background paid dividends. While the committee lawyers didn't share any information with Paoletta, they repeatedly called him and asked if McNamee was certain his testimony about Jose Canseco's party was correct. Their fixation alerted McNamee's team that there was an issue, although at this point they had no inkling of Clemens's secret communication with Strain two days earlier. “The nanny issue took on a life of its own,” Paoletta said later. “Brian mentioned this in passing, but the Clemens team tried to make it a do or die issue. It became extremely critical that Brian was telling the truth on this point. Whenever Brian talked about being at Canseco's home, he mentioned this nanny. The Clemens team had seized on it and had produced information to make it appear that Brian was lying-and that made the committee very nervous. Senior committee staffers called me to ask, 'Mark, are you sure about the nanny story? We have to know if there's a problem with that story.' I said, 'Look, I know what you're talking about, I understand your concerns. I have gone over and over this story with Brian. Every time he says the same thing about the nanny. He is locked on this. He's not lying.' ”
Paoletta believed McNamee unequivocally on the nanny issue. With pressure building in the few days before the hearing, Paoletta started to figure that the nanny could be their trump card-or the 3,000- pound anvil that sank McNamee's case.
As Tuesday afternoon turned to evening, the hearing a mere 12 hours away, McNamee's attorneys gained confidence. Brian was good. He knew what he knew, and he could tell it with ease no matter which way they came after him. They explained that this would be nothing like the civil meetings with Matt Parrella and George Mitchell: This was a televised congressional hearing. He couldn't allow himself to become bait for the hostile faction of the committee. And Paoletta's D.C. radar was picking up signs that there was some hostility indeed. Paoletta told Emery and Ward what he'd been learning: that the hearing would break down along partisan lines, and that it could get ugly. Emery was amazed at Paoletta's reconnaissance. “God knows who his sources were,” he said. When the group broke for dinner, McNamee went off with family, and Ward and Emery visited a Greek restaurant. Over baklava, they felt lucky to have added Paoletta to the team.
“He was Brian's supereffective advocate,” Emery said later of Paoletta. “Without Mark, we would have been bumbling fools. There's no doubt about it. We could have done it, but we were out of our league and Mark was right there.
“He got all the parking passes, knew where all the elevators were, all the guards. But it was more than that. It was a whole sense of how to treat people. When to be tough. When to be cooperative. His advice was flawless. I would go to him on any congressional issue.”
The prep session gave McNamee confidence and a sense of peace. When he joined his father, John; his brother- in- law; and his niece for dinner at the Capital Grille later that night, the trainer was relaxed and ready for the next day's events. The lawyers had drilled into him the need to stay calm under what they knew would be an all- out assault from some members of the committee. Pretend you're “Sammy the Bull” Gravano and you're answering questions from Congress about how many people you've killed, they told him.
“So you killed 50 people?”
“Yeah, yeah,” would be the matter- of- fact answer.
Gravano, who testified before a congressional committee investigating mob infiltration in boxing in 1993, is generally believed to have killed only 19 people, but McNamee got the point.
From the Hardcover edition.