In case you did not know it, Tom Fox is a big baseball fan (poor Tom roots for the Astros; of course, poor me for rooting for the Nationals).  I am sure Tom never thought that Roger Clemens would be denied the Hall of Fame, much less on criminal trial for lying to Congress.

 John Edwards has certainly had a fall from grace – from running for President, to hiding in a stairwell to escape a National Enquirer reporter, and finally to a federal courtroom for alleged election law violations. 

Clemens and Edwards share similar fates – they were vilified by the American public.  Clemens arrogantly denied to Congress his use of steroids in stark contrast to other baseball players who testified before Congress.  Edwards carried on an illicit affair, with hush money and scandal while his wife was ill and dying of cancer and he was running for President.  In the court of public opinion, no one could rescue Clemens or Edwards. 

In this climate, we have a new enforcement mechanism – criminal prosecutions.  Clemens is on trial for lying to Congress, an American institution that has public favor-ability ratings hovering in the teens.  Five prosecutors have now been assigned to the case to put one single defendant on trial for an otherwise straightforward case.  (In full disclosure, I worked in the government with the two prosecutors initially assigned to the case, and through no fault of their own, DOJ has assigned additional prosecutors because of the initial mistrial.  The two prosecutors are regarded as two of the best in the US Attorneys Office in DC).

Jury selection in the Clemens case revealed a concern among potential jurors – why do we care about Clemens lying to Congress?  Is there some great public interest that needs to be vindicated?  Does he deserve to go to jail?  This highlights the government’s challenge when criminal laws are expanded and applied to cases which may lack a compelling justification.  It is also reveals the overarching question is every criminal case – Is the defendant a bad person who should be punished?  I know this is a shock to everyone but the presumption of innocence and all our constitutional rights are frequently brushed aside when a jury stares at a defendant to ask this basic question.  Do not kid yourself and think that constitutional protections will shield a defendant when a jury evaluates a defendant and finds that he or she is a fundamentally bad person who did a bad thing.  Every criminal litigator knows this reality, and they play the litigation game to address that question.

Even aside from the question of who cares when someone lies to Congress, the government faces a challenge when they build a case built on the testimony of a cooperating witness who is involved in criminal activity.  Juries in Washington DC do not like cooperating witnesses, with the exception of certain cases.  The Africa Sting case demonstrated that the jury did not like Richard Bistrong, and was unwilling to trust his testimony.  Prosecutors acknowledge they have made a deal with the devil and try to innoculate themselves from relying on cooperating witnesses, and typically point to independent corroboration of the cooperating witness.  In the Clemens case, Brian McNamee is a real challenge given his slippery conduct and history and the government will need everything they can get to build up his credibility.

The Edwards case, like the Clemens case, faces the same two issues.  Why do we care that Edwards’ donors gave Edwards large amounts of money to support his concubine?  Was this an intentional scheme to circumvent the election laws?  What is the public interest in prosecuting Edwards by stretching election law to construe the financing as a failure to disclose campaign “contributions.” 

The Edwards case also hinges on cooperating witnesses, Andrew Young and others who have their own baggage to acknowledge.  Young allegedly contacted other witnesses in the last few days to discuss what they would say at the trial. 

While the trials may be fun to watch and follow as a “sport,” they really raise a broader question – is this a proper use of federal law enforcement resources?  If Clemens and Edwards are villains in the eyes of the American public, maybe they should be relegated to the ash heap of public opinion.  But is it necessary to prosecute them criminally and send them to jail, especially when law enforcement and prosecutors have more important criminals to catch.