Roger Clemens, Congressional Privilege, and the Right to a Fair Trial

The House Committee on Oversight and Government Reform (COGR) has moved to quash the Clemens subpoena on the grounds that the investigative documents sought are protected by Speech or Debate.  I will discuss COGR’s substantive Speech or Debate argument in a future post; for now I want to focus on the relationship between the Speech or Debate privilege and a criminal defendant’s right to a fair trial.

When it asked the Justice Department to investigate Clemens for lying to Congress, COGR produced a number of relevant documents.  COGR asserts that it “strove to provide the Department with all relevant factual information, regardless of which way that information might cut.”  However, it also acknowledges that it generally has not provided “internal Committee notes, memoranda, and communications.”

COGR goes on to argue that “[i]n light of [the] nature and the substantial volume of documents that the Committee has already produced, and the fact that all those documents are in the hands of Mr. Clemens’s attorneys, Mr. Clemens will not be disadvantaged by the quashing of his subpoena duces tecum to the Committee.”  However, “even if the Court were to conclude otherwise, it would not matter” because the Speech or Debate Clause “‘was designed neither to assure fair trials nor to avoid coercion.'” (quoting US v. Helstoski, 442 US at 491).  In other words, the congressional privilege trumps the right to a fair trial.

Because the protections of Speech or Debate are absolute, COGR is correct that the privilege cannot be overcome by a showing that the evidence is needed to assure a fair trial.  It does not follow, however, that a criminal defendant’s right to a fair trial must give way to the privilege.  Instead, if a congressional committee refuses to produce evidence that a court believes may be needed to assure the defendant a fair trial, the court may ask the committee for an opportunity to review the material in camera.  If the court cannot assure itself that the defense has access to all material evidence, it may dismiss the relevant counts.

This conclusion is consistent with the approach followed by other courts that have addressed this issue.  In U.S. v. Ehrlichman, 389 F. Supp. 95 (DDC 1974), Judge Gesell acknowledged that congressional transcripts sought by defendant G. Gordon Liddy were protected by Speech or Debate; nonetheless, the judge asked the House to “produce the subpoenaed testimony for in camera inspection by the Court on the assurance that only those questions and answers, if any, which prove significant and material to the defense would be disclosed.”

In the court-martial of Lieutenant Calley, the military judge requested that the House produce certain evidence requested by the defense.  The House failed to do so.  A federal district judge subsequently granted Calley’s habeas petition on the grounds that the House’s failure to release the requested information violated Calley’s due process rights.  In Calley v. Calloway, 519 F.2d 184 (5th Cir. 1975), the Fifth Circuit, sitting en banc, reversed.  The majority found that the information withheld was not so highly significant or material so as to rise to the level of a constitutional violation.  Five judges (including Judge Clark) dissented, finding that the House’s refusal to provide the information amounted to a denial of due process to the defendant.  Both the majority and dissenters appeared to agree that a withholding of information by Congress could, under proper circumstances, constitute a violation of due process.

The Clemens case, it must be said, would provide particularly strong circumstances for finding a due process violation.  Here the House of Representatives (or a committee thereof) is both the victim and the complaining witness against Clemens.  The case against Clemens presumably could not proceed unless COGR cooperated and provided access to materials otherwise protected by Speech or Debate.  It seems unthinkable that COGR could select which evidence will be available for the trier of fact to consider.

It very well may be that COGR has already produced all of the evidence material to Clemens’s case.  But a federal court need not (and I suspect will not) simply rely on COGR’s assurances to that effect.