On a day where the major national news story was the release of e-mails between the White House and the Justice Department which seem to prove that United States Attorneys were hired or fired based on their loyalty to the Administration, Gary Matthews Jr. finally issued the long-awaited statement regarding his alleged involvement with human growth hormone.
Is there a link between the two news stories?
Perhaps it’s not quite as far-fetched as you might think.
Put on your tin-foiled hat and play along.
You may not know that Angels owner Arte Moreno is a major fundraiser for President George W. Bush. So it’s not much of a stretch to think he knows how to get hold of Karl Rove or any other politcial operatives in the White House, especially if it’s to collect on a long-overdue favor.
Moreno has been pressuring Matthews to make some sort of public statement about the news report that Matthews’ name was one of many athletes and celebrities who allegedly ordered HGH from a Mobile, Alabama lab. The transaction allegedly occurred in August 2004, when MLB had not yet banned HGH, and reportedly Matthews had a prescription. The investigation by the Albany NY D.A. revolves around the physicians who issued these prescriptions; New York state law requires a physician to examine the patient before issuing the prescription.
Despite no evidence at all that Matthews had committed a crime, Moreno "promised" the press he’d resolve the matter by Opening Day. He let it leak that he’d hired attorneys looking for a way to revoke Matthews’ contract or otherwise punish him should Matthews refuse to come forward.
Matthews responded by hiring a lawyer. And recently he hired a second lawyer, Harold McGuire, who according to the Times is "a former federal prosecutor who represented the players’ union in winning a $280-million settlement from major league owners in 1990, as compensation for collusion in bidding on free agents."
When I read the McGuire story this morning, it occurred to me that Matthews would seek that kind of backup only if he thought he needed firepower to go toe-to-toe with Major League Baseball. Moreno trotted out Commissioner Selig last Saturday who stated that he supported Moreno 100%.
We know that MLB is very nervous about any governmental investigation of baseball and illegal drug use, having narrowly skirted Congressional action after the testimony by Mark McGwire, Rafael Palmeiro et al. A pledge by Selig to voluntarily enact stronger drug testing avoided the possibility of Congress voiding baseball’s unique exemption from monopoly laws, if not worse (e.g. governmental regulation of the sport’s drug testing).
So what ties Matthews, Moreno and Selig to the brewing Justice Department scandal?
It’s a January 20, 2003 document sent to all U.S. Attorneys (those would be the political appointees hired and fired by the Administration) called the Thompson Memorandum.
In short, the Thompson Memorandum says that if a private business under governmental investigation compels one of its employees to give testimony even if it incriminates the employee, the government can go easy on the business itself when it comes to filing charges.
According to a December 5, 2006 article in the New York Law Journal, to circumvent the Fifth Amendment the government can employ a private business on its behalf to compel an employee into self-incrimination. That’s why the Thompson Memorandum is so controversial, because it was an attempt by the Bush Administration to do an end-run on the Constitution. If government investigators can’t compel someone to give testimony incriminating himself, have his employer do it.
So now we have the spectre of Arte Moreno, a loyal Bush supporter, trying to coerce an employee into making a public statement regarding a criminal investigation.
How about that.
And even though Moreno says he’s satisfied, according to the Times the commissioner said his office "is still investigating the matter," and a MLB spokesman said "baseball could not rule out any suspension of Matthews under its drug policy."
In fact, the Mobile, Alabama lab where Matthews allegedly ordered the HGH is under investigation by the U.S. Attorney in Mobile, according to ESPN.com reporter Mike Fish. "A spokesman for the U.S. Attorney in Mobile has said a federal investigation of Applied Pharmacy remains ongoing, even while the district attorney in Albany has moved forward with indictments. The warrant issued for the August search, as well as the documents and property seized, remain under seal in Mobile district court. A federal grand jury in Mobile convenes later this month."
Hmmm … So Matthews could already be the target of a U.S. Attorney investigation — an attorney appointed by the Bush Administration.
Some people have written on bulletin boards that if Matthews has nothing to hide, he has no reason not to make a statement.
But it’s not that simple.
For openers, let’s start with obstruction of justice, which is broadly defined as any interference in the administration and due process of law. Let’s say that Matthews’ statement, while sincere, inadvertently contained a false statement that one could argue was intended to lead investigators astray. Could one of those "loyal" U.S. attorneys bring obstruction charges against Matthews?
That might be enough to give Moreno — or the commissioner — what he needs to suspend Matthews, or even break Matthews’ contract, even though I’m sure the players union would fight it.
You can take off your tinfoil hats now.
There’s no evidence any of this is actually going on, but the scenario is at least possible, if not plausible.
Just because Matthews got a big fat contract doesn’t mean he gave up his rights when he signed. There’s no monetary limit, high or low, in the Constitution when it comes to protecting your rights.
For those who have failed to learn from history, go watch on DVD the excellent film Good Night, and Good Luck about the Joe McCarthy hearings and how CBS News finally showed the guts to stand up to him. That probably wouldn’t happen today, since networks’ news divisions are now part of the bottom line and are expected to produce a profit. Corporations like Viacom, NBC/Universal and Disney don’t want to invite governmental investigations as it might cause their stock values to drop, so they think twice about challenging the all-powerful. And don’t get me started on Fox News, whose president Roger Ailes was a longtime Republican political consultant and helped run presidential campaigns for Ronald Reagan and George H.W. Bush.
So in an era when we can’t count on the Fourth Estate to be our watchdog, we’re left only with ourselves. And our lawyers.
If Matthews broke the law, I’m all for justice being done. When I was in law enforcement decades ago, we had a saying — "Don’t do the crime if you can’t do the time."
But any conviction should come through due process, and a respect for constitutional rights. That’s my beef with what Arte Moreno did. There was no reason for him to drag this out in the press. Maybe he thought he would somehow save face. But the story would have died a couple weeks ago if he hadn’t hired lawyers, started issuing ultimatums through the press, and brought in the commissioner. That was overkill, and it served no purpose other than to pressure Matthews into giving up his rights under duress.
And that was wrong.
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