Congressional Witnesses at the Clemens Trial

Needless to say, I don’t know exactly how the government plans to prove the “congressional facts” necessary to establishing its case against Roger Clemens. The government, however, has announced an intention to call two House witnesses, Charles Johnson (the former House Parliamentarian) and Phil Barnett (a long-time aide to Representative Henry Waxman, who chaired the COGR at the time that Clemens testified). They are clearly an important part of the government’s evidence with regard to the congressional facts.

The House Counsel’s office has filed a motion explaining to the court that it will be representing these witnesses at trial and may pose Speech or Debate or other objections to questions posed by either the prosecution or defense. This motion tells us a little bit about what they may testify to.

Johnson. The motion states that “[w]e do not anticipate, at this time, that Mr. Johnson will be questioned at trial by the prosecution about matters that are Speech or Debate protected or protected by other privileges.”  Presumably, therefore, Johnson will be testifying about his general knowledge and expertise on House rules and procedure. Thus, for example, he may explain how the House adopts its rules, forms committees and establishes areas of jurisdiction for each committee.

Johnson may also testify regarding COGR’s investigatory authority under the House Rules. Although House Rule X (1)(h) lists COGR’s specific areas of legislative jurisdiction (none of which would relate to the use of steroids in baseball), clause (4)(c)(2) provides that COGR “may at any time conduct investigations of any matter without regard to [rule provisions] conferring jurisdiction over the matter to another standing committee.” Referring to this provision could lead to an interesting legal/factual debate over what exactly it means. Does it mean that COGR can investigate anything under the sun? Does it mean that COGR can investigate anything that another committee of the House could investigate? (If so, one might ask whether COGR reported its “findings and recommendations” regarding the steroid investigation to another committee of jurisdiction, as required by clause 4(c) (2)). Or does it mean that COGR can investigate anything that relates to oversight of the federal government (which would not necessarily encompass the steroid investigation)?

Barnett. The House Counsel says that “Mr. Barnett will be questioned by the prosecution about matters that are Speech or Debate protected that are relevant to its case in chief. Mr. Barnett, in keeping with the position taken by the Committee itself, intends in general not to assert the privilege with respect to (i) matters relating to formal, public Committee investigatory activities concerning steroid use in Major League Baseball that are relevant to the prosecution’s case in chief, and (ii) questioning by the defense on cross-examination that is within the subject matter of the direct examination.”

Thus, while Johnson may help the prosecution establish that COGR had the authority/jurisdiction to conduct an investigation of steroid use in baseball, it will be up to Barnett to explain (1) why COGR chose to institute this particular investigation and (2) how Clemens’s statements and representations were “material” to any decision of COGR.

So what might Barnett testify to? First, he could explain COGR’s initial decision to hold hearings on steroid use in professional sports in 2005. Those hearings were intended in part to educate the public regarding steroid use and to spur the professional sports leagues, particularly Major League Baseball, to take stronger action against the use of these drugs by their athletes. While one might debate whether those purposes in themselves would be sufficient to justify the exercise of the congressional power of investigation, the 2005 hearings would seem to have a reasonable nexus to potential legislative activity. For example, during the 2005 hearings, Waxman pronounced himself “intrigued with the idea of one Federal policy that applies to all sports and all levels of competition from high school to the pros and that provides a strong disincentive to using steroids.” Moreover, there were two bills introduced in the House in 2005 to address the issue of steroids in sports.

Second, Barnett might explain Waxman’s decision to hold hearings in 2008 to focus on the Mitchell Report and whether certain individuals, including Clemens, had been truthful in denying steroid use to former Senator Mitchell’s investigators. According to a previous COGR filing in this case, these hearings were held “to investigate whether the Mitchell Report was accurate and credible, whether Major League Baseball would implement Mr. Mitchell’s recommendations, and whether Congress needed to legislate in this area.”

This may be a harder sell. If the purpose of COGR’s 2008 investigation were really to follow up on the Mitchell Report and the earlier 2005 hearings, for example, one wonders why COGR’s oversight plan for the 110th Congress does not appear to express any intent to follow up in these areas. Moreover, even if there was a legislative purpose underlying the 2008 hearings, Barnett will need to explain how Clemens’s testimony was “material” to a committee decision related to that purpose.

It should be noted that Barnett’s direct testimony, according to House Counsel, will be limited to “matters related to formal, public Committee investigatory activities,” but will not include internal and confidential communications. It would seem to be somewhat difficult for Barnett to testify regarding “materiality” without disclosing information regarding the committee’s internal communications and decision-making processes since, by definition, “materiality” requires the jury to make a determination about whether Clemens’s statements influenced or had the capacity to influence those processes.

Finally, it is noteworthy that the prosecutors are not calling any current or former members of Congress as witnesses. These are presumably the witnesses who would be in the best position to testify both about whether COGR was engaged in the “due and proper exercise of the power of inquiry” and whether Clemens’s statements were “material.” Particularly in light of the public statements made by COGR members at the time of the 2008 hearings (calling into question whether the hearing was in fact a legitimate legislative exercise), the absence of any Members as witnesses could hurt the prosecution.

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