Roger Clemens could face charges in the wake of his testimony before Congress.
A Congressional committee has taken the first steps toward asking the Department of Justice to start a criminal investigation into whether Roger Clemens committed perjury during testimony about performance-enhancing drugs, according to three lawyers with knowledge of the matter.
A draft letter referring Clemens, but not his accuser Brian McNamee, had been drawn up by staff members for the House Committee on Oversight and Government Reform by the end of last week, according to two of the lawyers. But all three lawyers, who spoke on the condition of anonymity because they were not authorized to comment publicly on the matter, said it was possible that McNamee would also be included in the referral by the time it was sent to the Justice Department.
If the committee does decide to refer Clemens alone, it would indicate that the Democratic majority, led by the chairman Henry A. Waxman, Democrat of California, had prevailed over any Republican reservations about the truthfulness of McNamee's statements in the Mitchell report, a subsequent deposition and his testimony at a nationally televised committee hearing Feb. 13.
That hearing split along partisan lines, with most Republicans attacking McNamee and most Democrats challenging Clemens. The next day, Waxman said he regretted that the hearing had been held — he said he thought the depositions would have sufficed but that Clemens's lawyers wanted a public airing of the issues — and that he also believed that Clemens did not tell the truth.
In an interview Monday, Waxman said that no decision on a referral had been made, but that one would be forthcoming by the end of the week. He said he had not yet spoken to the committee's ranking Republican, Tom Davis of Virginia, about the matter.
In addition, Keith Ausbrook, the Republican chief counsel of the committee, said he was not aware that a letter had been drafted. Joe Householder, a spokesman for Clemens's defense team, declined comment.
Because of the partisan nature of the Feb. 13 hearing, there had been speculation that the committee would refer the entire matter to the Justice Department rather than single out Clemens. In his deposition to Congressional investigators and at the hearing, Clemens denied that he had ever taken steroids or human growth hormone, even though McNamee has testified that he injected Clemens with one drug or the other on at least 16 occasions between 1998 and 2001.
In a related case last month, Waxman and Davis jointly asked the Justice Department to investigate shortstop Miguel Tejada for suspected false statements in 2005, when Tejada spoke privately with committee staff members about performance-enhancing drugs.
It was unclear Monday whether any Clemens referral would be similarly bipartisan. Although sending the entire matter to the Justice Department could be seen as a compromise between Democrats and Republicans, referring only Clemens's testimony could be read as an endorsement of the work of George J. Mitchell, the former Democratic senator who identified Clemens as a steroids user in his report on the use of performance-enhancing drugs in baseball.
Any referral from the committee is primarily a symbolic gesture. The Justice Department can decide on its own to investigate a Congressional perjury case, and indeed, several federal agents were present during the hearing Feb. 13. One of those in attendance was Jeff Novitzky, the I.R.S. agent who has spent the past several years investigating steroid use among professional athletes.
McNamee is cooperating with federal authorities and, under a proffer agreement, he will not be charged with any crimes if he tells the truth. In January, he gave federal authorities syringes, vials and gauze pads that he said contained proof that he injected Clemens with performance-enhancing drugs.
A referral by Congress is like an extra push to the Justice Department, said Todd D. Peterson, a law professor at the George Washington University School of Law who worked in the department's Office of Legal Counsel during the 1980s and 1990s.
"It simply puts informal public pressure on the Department of Justice to take a look at it and respond in some way to Congress's action," he said.
In addition, a referral also sends a message about "Congress's own view as to which testimony seems not plausible to them," Peterson said. If the committee chooses to refer Clemens's testimony and not McNamee's, he said, "that's a pretty clear statement as to what their views are."
Murray Chass and David Herszenhorn contributed reporting.
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