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What Must the Clemens Prosecutors Prove About Congress?

AP notes that “Prospective jurors screened Thursday for the Roger Clemens perjury trial were more critical of Congress for spending time investigating drugs in baseball than they were of the star pitcher on trial for lying to lawmakers about ever using them.”  Having watched some of the jury selection yesterday, I can confirm this observation. One woman, a contracting officer for GSA, voiced her skepticism about Congress’s priorities and made a pointed reference to the lengthy delay in passing this year’s appropriations bills.

One interesting question will be how much of the trial focuses on Congress, rather than Clemens. In order to prove its case, the prosecution has to establish certain facts regarding the congressional proceedings in which Clemens allegedly made false statements.

The parties agree that for five of the six counts against Clemens (three for false statements, two for perjury), the government must prove that Clemens’s statements were “material.” This means that they “had a tendency to influence” or were “capable of influencing” a decision of the House Committee on Oversight and Government Reform (“COGR”). Thus, the prosecution must prove beyond a reasonable doubt that some decision of COGR was influenced or could have been influenced by these statements.

For the obstruction of Congress charge, the government must establish that COGR was engaged in the “due and proper exercise of the power of inquiry.” The government has not offered any jury instruction on this point, and it appears that the government may expect that this will be inferred from the fact that COGR is a committee of the House and was conducting a proceeding.

Clemens sees it differently. He has offered a jury instruction that explains what constitutes the “due and proper exercise of the power of inquiry.” The instruction states: “The ‘power of inquiry’ is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. A Committee of the United States House of Representatives does not have authority to expose the private affairs of individuals, nor does it have the power to attempt to resolve differences between two individuals by conducting a hearing unrelated to existing or potential legislation. A legitimate investigation must be related to, and in furtherance of, a legitimate legislative activity of Congress.”

In addition, for the false statements counts, the government must prove that the alleged false statement or representation “pertained to a matter within the jurisdiction of the legislative branch.” The government’s proposed instructions say that a matter is “within the jurisdiction of the legislative branch” if COGR “has the power to exercise authority in that matter. In this regard, there is evidence that [COGR] had the power to exercise authority in holding a hearing titled ‘Restoring Faith in America’s Pastime: Evaluating a Major League Baseball’s Efforts to Eradicate Steroid Use.’” This doesn’t quite say that the jury must find that the matter was within the jurisdiction of COGR as a matter of law, but suggests that the jury may infer jurisdiction from COGR’s undisputed status as a congressional committee.

Clemens’s instructions say that a matter is within “the jurisdiction of the legislative branch” if COGR “had the power to exercise its authority as it did in this matter.” It goes on to repeat the admonition that the power of inquiry, though broad, is not unlimited, and does not include exposing private affairs or resolving differences between individuals unrelated to existing or potential legislation.

Finally, Clemens would instruct the jury that the government must prove the oath was taken before a “competent tribunal.” He would further instruct the jury that a “competent tribunal” is one that is acting within the same parameters as previously defined for “the due and proper exercise of the power of inquiry” and “the jurisdiction of the legislative branch.”

Although the perjury statute (18 U.S.C. 1621) requires that the defendant have taken an oath before a “competent tribunal, officer, or person,” the government’s instructions presume that COGR qualifies as a matter of law.

Thus, the parties will argue before Judge Walton regarding exactly what the jury needs to find with regard to Congress and how it should be instructed. But, at a minimum, the prosecution will have to establish materiality for all of the counts besides obstruction. It also seems that the prosecution will have to put on some evidence that COGR had the authority to hold a hearing regarding steroid use in baseball.

How might the government go about establishing these elements? I will look at that in my next post.

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