Was the Roger Clemens Hearing a “Show Trial”?

This is the question raised by Clemens’ opposition to the House Committee on Oversight and Government (COGR) motion to quash his subpoena for documents. Relying primarily on statements by minority members of COGR at the time, Clemens argues that the 2008 hearing at which he testified was not designed to consider or further any legislation. Instead, the objective was simply to find out if Clemens was lying when he denied using steroids, as claimed by the Mitchell Report commissioned by Major League Baseball. This, some COGR members asserted, amounted to a “show trial,” “gotcha games” and a “Roman circus.”

As I have discussed before, the connection between the Clemens hearing and any ostensible legislative purpose is a tenuous one. Although both COGR and the Justice Department strain mightily to do so, neither can show that the Clemens hearing led to any legislation; more importantly, they cannot produce any evidence that any member of COGR believed at the time that the Clemens hearing might have an influence on potential legislation.

Despite this, I doubt the court will accept Clemens’ invitation to overrule COGR’s Speech or Debate privilege on the ground that the hearing was outside the “legitimate legislative sphere.”  In the first place, the court will probably not give much weight to the comments of dissenting members– as COGR aptly puts it, “legislative democracy is a rough and tumble business that very frequently is characterized by boisterous debate and dissension.”

Second, the court will be reluctant to challenge the committee’s motivation for holding the Clemens hearing. Indeed, as COGR points out, the Supreme Court in Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508-09 (1975), stated that “in determining the legitimacy of a congressional activity we do not look to the motives alleged to have prompted it.” Of course, this does not mean that no congressional activity may be challenged– but it does suggest that the court should consider whether there was any possible legitimate reason for holding the Clemens hearing.

Under this forgiving standard, I think the hearing (barely) passes muster. It is conceivable, as suggested by COGR’s lawyers, that the committee wished to assess the accuracy and credibility of the Mitchell Report in part for the purposes of evaluating how well MLB was doing in investigating itself.  This in turn might have influenced the decision whether further legislative action was needed.  Admittedly, a lot of hypotheticals are involved, but the court could reasonably conclude that there was some legislative connection to the hearing.

Perhaps more importantly, the Justice Department notes that Clemens’ attack on the hearing really goes to fundamental questions that must be resolved by the jury- namely the “materiality” of Clemens’ alleged false statements and whether COGR is a “competent tribunal.”  If the court resolves these questions now, the proper remedy would be to dismiss the case, rather than to enforce the subpoena. Rather than deciding the issue on a sparse record, the court should wait at least until the prosecution has put on its case in chief.

For this reason, I think Clemens would be better served by concentrating on his need for the documents sought, rather than on the question of privilege.  Even if the materials in question are protected by Speech or Debate, the withholding of these documents, under the proper circumstances, would violate Clemens’ due process rights.  This point is implicitly conceded by both the Justice Department and COGR, with the latter expressly noting that the remedy for a due process violation would be to suppress evidence or dismiss the indictment, rather than to enforce the subpoena.

None of the parties have offered much in the way of a test to determine when material withheld by a committee is so essential as to violate the defendant’s due process rights.  Presumably the burden would be on Clemens to explain why the material withheld is critical.  It seems to me that he has failed to do that here. His strongest argument, IMHO, would be that he needs discovery with regard to materiality– but he has not made this argument. Instead, he appears to be fishing for evidence that could be useful for impeachment purposes.  

Accordingly, I think that Judge Walton should grant the motion to quash, but permit Clemens to make a more specific showing as to why he needs access to COGR documents. If he is able to make such a showing, the court should request that COGR provide the documents for in camera review and, if the committee refuses, consider granting other relief.

What Information Can Congress Get from Libyan Agents?

In 2002, in the course of investigating abductions of U.S. citizens in Saudi Arabia, the House Government Reform Committee subpoenaed three U.S. firms (Patton Boggs, Qorvis Communications and The Gallagher Group), which had provided lobbying and public relations services to the Saudi government.  Each firm was registered under the Foreign Agents Registration Act (FARA), which requires registrants to maintain, and make available for Justice Department inspection, extensive documentation regarding the foreign representation.

The Saudi government maintained that the subpoenas violated the Vienna Convention on Diplomatic Relations, which provides that “archives and documents” of a diplomatic mission are to be held “inviolable.” The House committee, backed by an opinion from Vienna Convention expert Eileen Denza, argued that the Vienna Convention was inapplicable to records of U.S. lobbyists for a foreign government.  It noted that the Saudi position was incompatible with FARA and pointed out that Congress had previously investigated the activities of lobbyists for foreign governments (in 1980 the Senate Judiciary Committee investigated Billy Carter’s lobbying on behalf of Libya).

Congress will want to keep this background in mind as it considers gathering information from Libyan agents in the U.S.  There are several U.S. firms that reportedly have contracted with the Libyan government to provide lobbying, public relations or other services.  Some registered under FARA; others did not.  Congress may want to obtain information from these firms to better understand Libya’s propaganda campaign in the U.S. and to determine whether FARA has been effective in making this campaign transparent.

I have always thought that the Saudi Vienna Convention argument was pretty weak (I represented the House committee in that dispute).  Moreover, under the present circumstances it seems unlikely that U.S. firms would abide by Libyan instructions to withhold information from Congress.  Thus, I suspect that Congress would have little difficulty getting information from Libya’s U.S. representatives.

A more difficult question will be presented if Congress attempts to get documents or testimony directly from Libyan diplomats.  Presumably these officials would normally enjoy immunity from congressional inquiry.  However, there are two wrinkles here that could make a difference.

First, there is the question of which Libyan government is entitled to representation in the U.S.  As far as I understand it, the U.S. has not yet withdrawn recognition from the Qadaffi regime or extended it to the Libyan rebels.  If this change occurs, however, it could affect the privileges and immunities available to Libya’s (former) diplomats.

Second, some Libyan diplomats in the U.S. have already broken with the Qadaffi regime.  Are these officials still entitled to diplomatic immunity/inviolability?

I don’t know the answers to these questions.  But lawyers on the Hill may want to start thinking about them.