The Long Ball Tactic

It’s not about the doping: Unanswered questions in the Lance Armstrong case

Posted in Uncategorized by mike on February 7, 2012

When U.S. Attorney Andre Birotte Jr. announced on Friday that there would be no charges against Lance Armstrong and his former U.S. Postal team the cycling world seemed to lapse into a kind of collective shock. Soon an all too predictable narrative began to be spun – namely that this was vindication for Armstrong and proof that he never doped. Out of curiosity I did a Google News search for the phrase ‘Armstrong cleared of doping charges’, sure enough more than one news agency was choosing to report the news of the case’s collapse in this way.

The truth, though, is somewhat more nuanced. My understanding is that sports doping is not, in itself, a crime in America and certainly not one that would be pursued by the U.S. Food and Drug Administration, the F.B.I and the Department of Justice.

Armstrong was never accused simply of doping. The doping may have formed the basis for a case involving fraud, or misuse of public money or any of the other charges it was rumoured Jeff Novitzky and his team were following, but not a crime on its own. Therefore, the investigation could, hypothetically, have thrown up evidence of doping and still been closed down if the attorney didn’t feel there was a strong enough case to make the serious charges stick. In other words, it’s not correct to say that this decision not to press charges vindicates Armstrong from doping. In the same way, perhaps, that the unsatisfactory conclusion to the recent Barry Bonds perjury trial does not exonerate him from taking steroids.

Those who, like cycling commentator Phil liggett, seek to conflate the issue of doping with the closure of the federal case have either not understood the procedure or are being deliberately disingenuous.

There may be an argument now to just let sleeping dogs lie, the issue of Armstrong’s doping will never fully be resolved and, surely, if there were that much evidence then the federal authorities would have pressed charges?  I had some sympathy with this viewpoint in the immediate aftermath of the news on Friday, but since then a number of news reports and anonymous sources have created many unanswered questions.

The most intriguing of these came today when Cyclingnews.com reported the US internet radio station NPR had spoken to “sources within the FBI, FDA and US Postal Services” who were “shocked, surprised and angry” that they were only given 30 minutes notice before the L.A. Attorney’s office informed the media the case would be closed. The NPR source also claimed that prosecutors were about to indict a number of individuals for fraud, witness tampering, mail fraud and drug distribution before the rug was seemingly pulled from under their feet.

This version of events was backed up by “a source who had co-operated with the federal investigation” who told Cyclingnews.com:

I talked to someone within the investigation but the reason why the case was shut down was due to a one man decision. The evidence against those involved was absolutely overwhelming. They were going to be charged with a slew of crimes but for reasons unexplained he closed the case saying it wasn’t open for discussion.

We can piece together from this, then, that Andre Birotte Jr made the decision on Friday to drop the case unilaterally, only giving the agencies investigating it a 30 minutes head start before the media was told. Birotte, in his position as Attorney for the Central District of California, is entirely within his rights to do this, but the source who have subsequently spoken out clearly do not agree that there was insufficient evidence. Indeed, Cyclingnews’s source believes the federal evidence was “absolutely overwhelming”.

Why, then, do we find ourselves in the situation we are in now? There could be any number of explanations why Birotte took the decision to drop the case quietly, the Friday before the Super Bowl (a time when the media are distracted with the football event of the year and may not have either the resources or the will to comprehensively follow up a legal case involving cycling). Could one explanation be that this was more a political decision than a judicial one? The more we look at the information available combined with the odd timing, the more we are compelled to ask just what exactly went on behind the scenes?

The team that Armstrong hired to defend himself certainly carries some political clout. His attorney Mark Fabiani, the man dubbed the ‘master of disaster’, is a former White House special counsel who, according to ESPN, “specializes in helping steer embattled politicians, companies and organizations through legal and public relations crises”. It was Fabiani who steered Bill and Hilary Clinton through the Whitewater scandal of the early 90s and was hired by Goldman Sachs in April 2010 in the aftermath of the global financial crisis to clean up its public image. The Financial Times described one of Fabiani’s main attributes as being “politically connected”.

Fabiani’s business partner Chris Lehane is similarly well connected and, it is reported, worked on a daily basis in the White House with Clinton’s lawyer Lanny Breuer, who is now Assistant Attorney General for the Criminal Division of the Department of Justice.

Before getting into full-blown conspiracy theory mode it’s maybe time to step back slightly and state that there’s no reason to believe anything untoward happened. Maybe a little lobbying went on here, a few old friends were lent on there, who knows. I do believe, however, that it’s worth highlighting the circles in which Armstrong and his team moved in, in order to view the case in a wider context.

If we take the Cyclingnews and NPR sources at their word then a U.S. Attorney has taken the decision to close down a case which those investigating it felt there was ‘overwhelming’ evidence to pursue. If that is what went on then there must surely be other factors involved. Would Birotte really want to spend the state’s time and money trying to prosecute someone as well connected as Armstrong? Did he really want to be the guy who sanctioned an investigation into how one of the world’s best known cancer charities spent its money? Did he decide, in the end, despite the evidence, the most politically expedient move would be to put a lid on the whole thing and move on? The timing of the decision could have come right out of the Fabiani PR playbook, as could the subsequent reports and comments trying to confuse the dropping of the Federal case with an acquittal from allegations of cheating in a bike race in France.

There may be more to come. In the meantime we can only speculate.

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