So We're Indicting Baseball Players, But Not DOJ Officials for False Testimony to Congress?

By J. Gerald Hebert , Campaign Legal Center. Posted February 10, 2009.

Yesterday's charge against major league baseball star Miguel Tejada speaks volumes about the skewed law enforcement priorities within the Justice Department.

At the outset, let me make clear that I am not stating that Miguel Tejada should not be charged. Rather, I find it shocking that the Department would elevate the prosecution of a major league baseball player for lying to congressional investigators about steroid use above the prosecution of a former Justice Department official who was found to have given false testimony to Congress about politicized and illegal hiring practices within the agency.

A recently released report from DOJ's Inspector General found that Acting Assistant Attorney General Bradley Schlozman gave false testimony to the Senate Judiciary Committee (both in his oral testimony and in written supplemental testimony) regarding his partisan misuse of his office and his violations of the Civil Service Reform Act.

Page 64 of the report states unambiguously that, "Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee and in his written responses to supplemental questions from the Committee." The IG report further notes that Schlozman "made false statements to Congress" and referred the matter to the US Attorney's office for prosecution. Inexplicably, the U.S. Attorney's office for the District of Columbia declined prosecution of Schlozman. The same U.S. Attorney 's office now announces that it has decided to pursue charges against a professional baseball player.

Baseball may be the national pastime, but the Department of Justice is the nation's law enforcement agency. Federal prosecutors know that knowingly making false statements under oath to Congress, especially when that testimony comes in the context of a public corruption hearing, is a most serious crime. That the IG concluded that Mr. Schlozman was found to have done it both orally and in writing makes the decision not to prosecute him even more incomprehensible. If public officials can provide false testimony investigating corruption with impunity, how worthwhile is Congress's oversight authority?

Anyone who is a baseball fan is deeply saddened by the steroid scandals that have engulfed the game. As a career prosecutor in the Justice Department for over twenty years, I am surprised that DOJ sees making false statements to congressional investigators as a prosecutable offense, but making false statements to Congress is not.

It seems pretty clear that the Department of Justice's IG was stymied in his ability to investigate, and faced obstacles that a federal prosecutor with subpoena power would not. The DOJ's IG reported:

"We were unable to interview several former Civil Rights Division officials no longer employed at the Department who declined our request for interviews. For example, Bradley Schlozman, who served as DAAG, Principal Deputy Assistant Attorney General, and Acting AAG in the Division, declined our interview request through his counsel. In addition, J. Michael Wiggins, who also served as a Principal DAAG for the Civil Rights Division, and Hans von Spakovsky, former Counsel to the AAG, declined our requests to interview them as part of this investigation. Jason Torchinsky, former Counsel to the AAG, did not respond to our written request for an interview."

Each of these persons is likely to have relevant information and should be required to provide it. If they already have been subpoenaed and provided testimony, that testimony should be reviewed with fresh eyes to determine if it is complete and whether further questions should be asked. And these individuals, who reportedly tried to set limits and conditions on their interview with the IG, would be required to testify under oath about what they knew and what they did. Then, and only then, will we know the complete details of what is undoubtedly one of the biggest scandals ever to infect the Civil Rights Division of the Department of Justice.

Given its track record, I don't hold out much hope for the current leadership of major league baseball to take aggressive and effective steps to clean up the steroid scandal and those implicated in it. After all, the game has essentially operated without an effective and independent Commissioner for over a decade and the steroid scandal goes on and on, doing great damage to our national pastime. But an independent and even-handed Justice Department is also a national treasure and sacred to the Republic. The Department has been badly damaged by recent scandals. All those who have tarnished the reputation of the Department of Justice should be held accountable. This is not to say that those who tarnished the image of our national pastime and then lied to Congress about it should not be held accountable also, but sensible priorities would seem to dictate a different course of action than what has transpired to date.

Unlike major league baseball, the Department of Justice does have new leadership. Fortunately, during his confirmation hearings, Attorney General Holder promised to re-examine the decision not to prosecute Schlozman. We shall soon see what that re-examination brings.

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