Justice Department v. Rafael Palmeiro? Perjury Charges Unlikely

As has been reported extensively, Baltimore Orioles’ first baseman Rafael Palmeiro revealed yesterday that he tested positive for steroids in July, which triggered an automatic 10-game suspension under baseball's new steroids policy. This revelation comes only five months after Palmeiro testified before the U.S. House Judiciary Committee that he had never used steroids. As we discussed then, Palmeiro was demonstrably adamant in his denial. Indeed, his dramatic, finger-waving rebuke of steroid suspicions was oddly reminiscent of when former President Bill Clinton waved his finger at reporters, saying, "I did not have sexual relations with that woman, Ms. Lewinsky." Apparently, we now know that when someone waves their finger in denial, they probably aren't telling the truth.

Of course, Palmeiro's sworn statement in March and his unsworn statement yesterday aren't necessarily contradictory. In March, he said that he had never used steroids; yesterday, he said that he never knew that he had used steroids, even though he had. So if he didn't know then what he knows now, then maybe he wasn’t lying. Alternatively, maybe he had never used steroids as of March 2005, but has since unknowingly become a steroids user. Or at least those are the fanciful stories that his lawyer will spin if Palmeiro is charged with lying under oath, or perjury.

And therein lies the greatest threat to Palmeiro: criminal prosecution by the Department of Justice for perjury. Naturally, courts take perjury quite seriously, since "miscarriages of justice" can arise whenever judges and juries render decisions based on dishonest evidence. In fact, a federal perjury convinction can land a defendant behind bars for up to five years.

However, as noted by former U.S. attorney Joseph diGenova, "the imprecision of congressional testimony makes it nearly impossible for the Justice Department to make out a proper perjury investigation."

On the other hand, it would seem that Palmeiro's testimony couldn't have been any more precise. Consider his opening remarks before the Judiciary Committee:

Let me start by telling you this: I have never used steroids. Period. I don't know how to say it any more clearly than that. Never.

That doesn't leave much room for interpretation, does it? While Mr. diGenova may be correct about most congressional testimonies, "the imprecision of congressional testimony" limitation doesn't seem as relevant in this instance.

However, several members of the House Judiciary Committee have already signaled that, because Congress cannot verify or refute Palmeiro's testimony (i.e., Congress can not go back in time and test Palmeiro for steroids), no perjury charges are forthcoming. Most illuminating are these remarks from U.S. Rep. Christopher Shays (R-CT):

[T]he committee's No. 2 Republican, Rep. Christopher Shays of Connecticut, said he wouldn't advocate a perjury investigation.

"I just don't know if he was taking steroids then or not. Who knows?" Shays said in a telephone interview.

Moreover, a person cannot typically be convicted of perjury for making an "honest' mistake or an "honest" false recollection. So, in conjunction with a lack of any apparent evidence, Palmerio's assertion that he didn't know he was taking steroids would seem to further exculpate him.

For these reasons, it appears unlikely that Palmeiro will be charged with perjury. Instead, his penalty will most likely be levied by disgusted baseball fans and diffident Hall of Fame voters alike.

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