More on the Clemens Subpoena

As promised in my last post, I want to follow up on the Speech or Debate argument made by COGR in support of its motion to quash the Clemens subpoena.

At first blush, there would not seem to be much to discuss.  There is little question that the type of oversight and investigative committee records sought by Clemens are generally protected by Speech or Debate.  This is black-letter law, particularly in the D.C. Circuit.

Yet COGR devotes considerable effort to demonstrating that Speech or Debate applies.  It focuses particularly on persuading the court that the committee’s investigation of steroid use in baseball fell “well within the scope of the Committee’s legitimate legislative functions.”  Indeed, it says, “this is not even remotely a close question.”

In its enthusiasm to make this point, COGR goes a bit far.  For example, it asserts that the steroid investigation was “integral to Congress’ power to legislate on a number of subjects, including, but not limited to, public health, education, crime and interstate commerce. (emphasis added).  My copy of Article I gives Congress power to regulate commerce among the several states, but says nothing about public health, education or crime.

Be that as it may, the standard of judicial review here is extremely forgiving.  So long as the inquiry is within the committee’s jurisdiction and involves matters on which legislation may be had, the court should not second guess the committee’s investigative choices.  The baseball steroid investigation would seem to satisfy this standard.

Of course, many people would dispute that the actual motive of this investigation was to obtain information for legislative purposes.  Some people (less charitable than myself) may suggest that it was designed more for glorified infotainment, if not outright grandstanding.  Fortunately for COGR, however, the courts have forsworn inquiry into actual congressional motives.

Moreover, if the court were to find that the steroid investigation was improper or beyond COGR’s authority, the remedy in all likelihood would not be to enforce the subpoena.  Instead, it seems that the court would have to dismiss the case altogether since the charges (perjury, false statements and obstruction) all depend on the existence of a proper congressional investigation.

There is, however, a distinct but related issue regarding the investigation.  This is the question of whether any of Clemens’s (alleged) false statements to COGR was material to the investigation.  Materiality in turn depends on the purpose of the investigation and the relationship between Clemens’s answers and any potential legislation.

Here there would seem to be a serious question as to the materiality of Clemens’s statements.  COGR did not call Clemens as a witness until several years after its initial hearing on steroid use, after pertinent legislation had been drafted and introduced, and after former Senator George Mitchell had issued a comprehensive report on steroid use in baseball.  One might well ask how the accuracy of the Mitchell report with respect to Clemens’s personal steroid use was “material” to any proper subject of legislative inquiry.

COGR may hope that if the court believes there is “not even remotely a close question” with regard to the legitimacy of the committee’s investigation, it will be less inclined to inquire into materiality.  But while it is up to the court to determine the legitimacy of the investigation, materiality is a question of fact for the jury.  Clemens may argue that he needs internal committee documents in order to challenge the materiality of the statements made to COGR.  This should not affect the Speech or Debate analysis, but, as suggested in my last post, it bears on whether the documents are needed to ensure that Clemens receives a fair trial.