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Clemens Plays Hard(in) Ball with Congress

I know what you’re thinking.  How long did it take me to come up with that title?  (Couple hours, tops).

Anyway, as has been widely reported, Roger Clemens and his attorney, Rusty Hardin, have subpoenaed the House Committee on Oversight and Government Reform (COGR) in relation to the upcoming criminal case against Clemens for congressional perjury, false statements and obstruction.  The subpoena seeks not only records relating directly to Clemens’s own statements to COGR, but documents relating to 20 other named individuals (including Chuck Knoblauch, Jose Canseco and Andy Pettitte) involved in COGR’s investigation of steroids in professional baseball.

So what happens now?  Under House Rule VIII, COGR is required to notify the Speaker of the subpoena.  This notification will be placed in the Congressional Record. COGR is further required to determine whether the subpoena represents “a proper exercise of jurisdiction by the court,” seeks information that is “material and relevant,” and “is consistent with the privileges and rights of the House.”  If these determinations are made in the affirmative, COGR is required to comply with the subpoena (absent an order from the House to the contrary).

In this case it seems highly likely that the materials sought by the subpoena, consisting of information compiled in the course of a committee investigation, are protected by the Speech or Debate Clause.  Indeed, Hardin should be well aware of this fact.  He represented Arthur Andersen in its criminal trial, during which the company subpoenaed records from the House Committee on Energy and Commerce, which successfully moved to quash the subpoena on Speech or Debate grounds.

Clemens, however, is in a somewhat different situation.  He is being prosecuted for crimes committed before Congress, and it would be impossible to prosecute him without putting on evidence relating directly to legislative proceedings.  Moreover, COGR referred him to the Justice Department for prosecution, so one might argue that this waived the privilege, at least for evidence directly bearing on the issues in the case.  Alternatively (and more likely), COGR would remain free to assert the Speech or Debate privilege, but Clemens could seek to have the charges dismissed on the grounds that COGR’s refusal to provide critical evidence violated his due process rights.

For this reason I think that there is a good chance that COGR may conclude that producing some of the records requested by the subpoena is “consistent with the rights and privileges of the House.”  After all, the House wants congressional perjury to be punished.  It is less likely, however, that COGR would agree to produce records having only a tangential relevance to the case against Clemens.

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