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Is Congress Competent?

Ok, that’s not exactly the question raised by attorneys for Roger Clemens in last week’s filing in federal district court, but I bet its how they hope the jurors interpret the question.

Technically, the issue that Rusty Hardin and company want jurors to consider is whether the House Committee on Oversight and Government Reform (COGR) was a “competent tribunal” when it questioned Clemens in 2008 about his alleged steroid use. They also want jurors to decide if COGR was engaged in “the due and proper exercise of the power of inquiry” and whether Clemens’s alleged false statements were made in a matter “within the jurisdiction” of the legislative branch.

According to the defense team, these competency elements all boil down to one basic inquiry: what was COGR’s purpose in calling Clemens to testify and with respect to the specific questions he was asked. Examples of improper purpose, they say, include:

  • Questioning a witness solely for a purpose other than to elicit facts in aid of legislation
  • Usurping the functions of a prosecuting attorney in the guise of a legislative investigation
  • Re-questioning a witness for the purpose of rendering him more liable to criminal prosecution
  • Conducting a hearing for an actual purpose different than a stated purpose
  • Directing an inquiry primarily to the witness’s guilt or innocence of a crime

To which the prosecution responds: go ahead, make my day. Rather than contesting the defense position on what types of competency issues may be presented to the jury, or pointing out the serious Speech or Debate/separation of powers problems that could result from a judicial inquiry into legislative motives, the government seems to concede the defense’s right to put COGR on trial.

Instead, the prosecution warns that if the defense exercises this right, the government must be permitted the opportunity to show the “broader context” of the congressional investigation. It says “if defendant thus calls into question the competency of the congressional tribunal by suggesting that the Committee was not acting with a proper legislative purpose, then the United States must be permitted to explain, among other things, the seriousness of the problem of steroids and other performance enhancing drugs, the national spotlight being cast on this problem, and the necessity for the congressional inquiry.” The defendant “cannot, on the one hand, impugn the integrity of the Oversight Committee by suggesting that its true- singular- motive was a perjury indictment of him, but, on the other hand, preclude the United States from explaining to the jury, for example, that the Committee’s investigative work was of national importance because of the wide-spread problem of steroid and other performance enhancing drug use in Major League Baseball.”

This strikes me as a dubious prosecution strategy. In the first place, I doubt that anyone is disputing the “seriousness of the problem of steroids and other performance enhancing drugs,” generally speaking. What is being questioned is the reason for calling a particular witness to a particular congressional hearing. I don’t think that Judge Walton will allow that to be the basis for inquiry into steroid use by other baseball players. Moreover, even if the court does allow it, I am not sure this is a good trade for the prosecution. Many jurors may be more concerned about Congress’s reasons for the investigation than they are about steroid use in baseball.

I also wonder about the more general implications of the prosecution’s apparent concessions. The government must prove that Clemens’s statements were material, and this means that they have to be related to a legitimate legislative purpose. But there also have to be limits on how far the parties can go into the actual motives of the COGR members, or otherwise every congressional perjury case will devolve into a political trial of Members of Congress. The prosecutors have not suggested, at least yet, what those limits might be.

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