The Clear

Yahoo!’s Jonathan Littman has a major story today about the legal status of “The Clear” at the time Barry Bonds was asked about it in the course of his grand jury testimony, and suggests that this fact may prove problematic for prosecutors:

It could explain why Barry Bonds’ attorneys believe the grand jury questions to him were impossibly vague and why the focus of the BALCO case veered from prosecuting distributors of illegal anabolic steroids and money launderers to catching world-class athletes lying about drug use.

Taking the Clear – the star drug of the Bay Area Laboratory Co-Operative – was not a crime, according to expert testimony included in grand jury documents.

Not only was the performance-enhancing drug tetrahydrogestrinone (THG) not specifically banned when athletes squirted “The Clear” under their tongues to gain an edge, the testimony also indicates that the drug wasn’t categorized by the Justice Department as a steroid until January 2005, long after the drug laboratory had been shuttered . . .

. . . “This case has been presented as Barry Bonds lying about steroids,” said Christopher Cannon, a San Francisco defense attorney with extensive experience in federal perjury cases. “The government’s theory is that he was taking the Clear. If the government knows the Clear wasn’t a steroid – then when Barry said he wasn’t taking a steroid, he was telling the truth.”

Well, partially. As I noted last year, Bonds was indicted for lying in response to numerous specific questions, and not all of them were of the “did you take steroids” variety which Mr. Cannon believes to be a problem in light of this new information. There were several other general categories of questions too, such as “did Anderson ever give you anything to take in a syringe” as well as questions about the years in which Anderson gave Bonds anything. The revised indictment setting forth the specific questions is here.

The key to remember here — and the thing that almost everyone reporting on this case forgets for some reason — is that this isn’t a prosecution of Barry Bonds for actually taking steroids. It’s a prosecution about him lying in response to specific questions in a specific setting. If it was the former, yes, the fact that THG wasn’t technically a steroid when Bonds took it would be highly relevant. Since it was the latter, however, the fact of it being classified as a steroid or not only has bearing on some of the counts Bonds faces. I guess the easiest way to think of this is to imagine that one of the questions to Bonds was whether or not he had ever taken Coca-Cola orally in the Giants’ clubhouse. If he said “no” even though he really had, it still would have been perjury despite the fact that Coke is street legal.

But while the facts set forth in Littman’s article may not render as serious a blow to the Bonds prosecution as his quoted experts imply, it does show how cynical and in many ways frivolous the prosecution of Bonds really is. Yes, it’s technically a violation of the law to lie about drinking a Coke under oath. One would have a right to wonder, however, why scarce prosecutorial resources were being brought to bear in a case about soda consumption. It remains to be seen whether THG and the other fine products from BALCO are any more dangerous — or available to impressionable youngsters for consumption — than a Coke, but I can’t help but think that even if they are, making a six-year, $55 million federal case out if it seems like a waste of time and money.