“We Refer a Lot of Things that Don’t Get Prosecuted”

So noted former congressman Tom Davis after Roger Clemens was acquitted on all charges stemming from his congressional testimony regarding alleged steroid use. Davis was explaining to the Washington Post why he did not believe the Justice Department was obligated to prosecute Clemens even though he and Representative Henry Waxman (respectively the ranking member and chairman of the Committee on Oversight and Government Reform at the time Clemens testified before that committee) had referred the matter to the Department for investigation.

As a technical matter, Davis is certainly correct. The Justice Department is not obligated to, and does not in fact, prosecute all cases referred to it by Congress. (Arguably, the Justice Department is obligated to present all congressional contempt cases referred under 2 U.S.C. ¶ 194 to a grand jury, but it doesn’t do that either).

In the case of a congressional perjury referral such as was made with regard to Clemens, I think it is safe to assume that the Justice Department conducted a thorough investigation of whether Clemens lied before Congress when he denied ever having used steroids. After conducting the investigation, it presumably reached an independent conclusion that Clemens was lying. It seems unlikely that the Department relied on the referral letter from Waxman and Davis, particularly since that letter states: “We are not in a position to reach a definitive judgment as to whether Mr. Clemens lied to the Committee. Our only conclusion is that significant questions have been raised about Mr. Clemens’s truthfulness and that further investigation by the Department of Justice is warranted.”

It is different matter with respect to the “congressional elements” of the charges, however. Although the referral letter does not explicitly address these questions, the Justice Department would have reasonably assumed from the fact of the referral itself that Waxman and Davis believed that Clemens’s testimony was “material” to a matter within the jurisdiction of the committee, and, of course, that the committee was a “competent tribunal” engaged in the “due and proper exercise of the power of inquiry.”

It seems likely that the Justice Department deferred to Congress’s judgment on these issues and, in my opinion, it was appropriate for it to do so. It is not the Justice Department’s decision as to what investigations Congress undertakes, what witnesses it calls, or what questions it asks, and the Department should be extremely reluctant to second-guess Congress in such matters.

The problem, of course, is that somebody should make a determination as to whether a congressional perjury case satisfies the materiality and other congressional elements of the statute. If the question is a close one, it is also important to figure out how these elements will be proved and what privileges Congress is prepared to waive in order to make the case. It is unclear whether anybody in the Clemens case actually considered these issues, at least before it was too late to do much about it.

In the future, I would recommend that these issues be considered at an institutional level in Congress (perhaps by the House or Senate legal counsels reporting to their respective leaderships) either before a referral is made or before a congressional perjury/obstruction prosecution is initiated. If that had been done in the Clemens case, perhaps the House would have decided that the case did not merit prosecution after all.

As it turns out, post-trial interviews of the Clemens jurors thus far suggest that they based their verdict primarily on lack of evidence that Clemens was lying when he denied using steroids. It seems likely, however, that their deliberations were colored to some extent by skepticism about the congressional investigation itself and the materiality of Clemens’s testimony to that investigation. So while the Justice Department may deserve the lion’s share of the blame for the outcome, Congress is not entirely without fault here either.

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