Responding to criticism from Roger Clemens' lawyers, federal prosecutors say the government has no obligation to hand over documents that are not in the possession of the United States Attorney's Office.
Clemens' defense team, led by Russell Hardin Jr. of Houston, allege the government has outsourced, to third parties, its obligation to turn over favorable information that may help Clemens fight charges of perjury and obstruction. Prosecutors on Friday denied the charge (PDF).
Clemens is trying to squeeze documents from DLA Piper—which investigated drug use in baseball—and the House oversight committee. In 2008, the committee held hearings on DLA Piper’s 407-page report—named after former DLA Piper chairman George Mitchell—examining performance enhancing drug use in baseball. Clemens’ defense team is exploring inconsistencies among possible government witnesses.
DLA Piper, citing the work product doctrine, is refusing to turn over 20 documents, including certain memos and interview notes. Lawyers for the House committee argue there’s a constitutional protection against the forced disclosure of congressional investigative documents. House lawyers said in court papers (PDF) filed Friday that Clemens is "simply fishing" for information.
An assistant U.S. attorney, Steven Durham, the lead Clemens prosecutor, said DLA Piper has not turned over any of the disputed 20 documents to the government and that the government cannot “pierce” the law firm's assertion that the attorney work product doctrine shields the documents from disclosure.
DLA Piper, Durham said, is not a government agency. Prosecutors, he said, have no access to the firm’s files. Durham, however, said the government asked the firm to search its files for any potentially favorable information “in an attempt to meet all of its discovery obligations and in an abundance of caution.”
The U.S. Attorney’s Office declined to take a position on the merits of DLA Piper’s work product doctrine argument and the government took no position on the House’s assertion of the speech or debate privilege.
Durham said the government has given Clemens’ lawyers substantial information for use in the preparation of his defense.
U.S. District Judge Reggie Walton has scheduled a hearing for Thursday in Washington federal district court.