Why the Wheels Came Off the Lance Armstrong Case

The Armstrong investigation was not about drugs or doping in the U.S. It was about a bike race. In France. Talk about prosecutorial overreach

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Alessandro Trovati / AP

Seven-time Tour de France winner Lance Armstrong rides through the countryside during the Tour de France, July 7, 2005.

The federal fraud case against Lance Armstrong tied to alleged doping in the Tour de France went over the handlebars Feb. 3, when U.S. Attorney André Birotte Jr. announced, in a brief press release, that his office was closing its investigation. But not before Birotte commended the efforts of “prosecutors and special agents with the U.S. Food and Drug Administration, the Federal Bureau of Investigation and the United States Postal Service Office of the Inspector General.” What, no CIA?

There are a lot of criminal cases worthy of investigation by the U.S. Attorney; prosecuting an American citizen for winning a bike race in France shouldn’t be one of them. Birotte’s office had sent its forces, led by chief investigator Jeff Novitzky, across Europe in their open-ended, open-checkbook crusade to discover whether Armstrong had defrauded the U.S. Postal Service. How? By taking bonus money after he won the Tour as lead rider for the USPS sponsored cycling team if he had cheated to win by taking performance-enhancing drugs. There was a secondary argument that if Armstrong cheated, the USPS was denied the marketing benefit it was due from being the lead sponsor of the team. This argument is beyond absurd. Being associated with a winning team like the Posties gave USPS more than its money’s worth of exposure. The cover of Sports Illustrated? You can’t buy that. And how can you possibly sully the reputation of the same USPS that is so ineptly run it is hemorrhaging billions. Armstrong ought to sue the USPS for damage to his reputation by association.

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Armstrong was gracious in victory which, given the way he has run down rivals on the Alpe d’Huez , was somewhat surprising. “I am gratified to learn that the U.S. Attorney’s Office is closing its investigation,” he said in a statement. “It is the right decision and I commend them for reaching it. I look forward to continuing my life as a father, a competitor, and an advocate in the fight against cancer without this distraction.”

But if you know Lance, and I do, you can imagine his lawyers gang-tackling him — he is probably furious enough to win another bike race. He could never quite fathom why the U.S. government would loose a special investigator like Novitzky, from the Food and Drug Administration’s Office of Criminal Investigation, to go after him as if he were the reincarnation of Al Capone, forcing him to spend a ton of money on legal costs.

You can go ahead and question whether Armstrong is a doper or not. Everyone does, and he continues to remind people that he has never failed a drug test, despite being subject to hundreds of them. But serious questions also need to be asked about prosecutorial overreach. Remember, the Armstrong investigation was not about drugs or doping in the U.S. It was about a bike race. A bike race in France.

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Birotte dropped the case despite testimony from some of Armstrong’s former teammates or associates that they saw, or heard him admit to, the use of illegal drugs or methods. There is no shortage of vendetta from the likes of flakey Floyd Landis, a former team mate who was stripped of his Tour title for doping, and Betsy Andreu, wife of former Armstrong team mate Frankie Andreu. If so many people were lining up to take Armstrong down, why did Birotte fold?

One explanation could be found in the case against baseball slugger Barry Bonds, which ended in a strikeout for the government. It was another derivative legal action in which Bonds was charged not with possession of steroids or some other illegal substance, but with perjury and obstruction of justice in relation to his grand jury testimony in yet another federal investigation into PEDs, known generally as the BALCO case. Bonds beat three of the four charges and is appealing a conviction for obstruction: How are you obstructing justice if you haven’t been convicted on other charges? Even if Bonds loses the appeal, his sentence is 30 days home confinement, two years probation and a small fine. This despite what has to have been a multimillion dollar investigation going on for eight years of so.

The jury in the Bonds case threw the prosecution a bone, telling the feds: If this is the kind of garbage case you’ve interrupted our lives for, you get what you deserve. As a perp, Bonds was hardly a sympathetic figure. Unlike Armstrong, he clearly did use PEDs, (unknowingly, he said) and he’s a bit of a creep, too — even some of his own team mates didn’t like him. Imagine bringing a guy like Armstrong to trial: A heroic cancer survivor who devotes himself to the Livestrong Foundation, the charity he founded that underwrites cancer awareness, support and research. Could you even find 12 people in the U.S. who have not in some way been touched by cancer?

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No wonder Birotte folded. In the meantime, there may be some questions asked of the FDA’s Office of Criminal Investigations, whose director, Terry Vermillion, resigned last year. Just what are its priorities, other than trying to nail people who have considerably more athletic ability than its investigators do? Rep. Jack Kingston (R-Ga.) demanded to know as much, asking the agency to account for the money spent investigating Armstrong. “I would like to know what priority that is in the food chain,” Kingston told FDA Commissioner Margaret Hamburg, according to The Hill. In other words, what do these investigations have to do with keeping food and drugs safe for consumers?

Armstrong is not off the hook completely. The U.S Antidoping Agency (USADA),  a non-government, non-profit which apparently has a lower evidentiary threshold than the federal criminal code, vows to continue its own investigation into professional cycling, using “the information developed during the federal investigation.” Very well. USADA can drag this out as long as it likes but on its own nickel, not the taxpayers.’