Statements that Rep. Darrell Issa made in 2008 to the press during the congressional inquiry into drug use in professional baseball should not be allowed at the Roger Clemens perjury trial, prosecutors and lawyers for the congressman said today.
Lawyers for Issa, the California Republican who is now the chairman of the House Committee on Oversight and Government Reform, said the statements to reporters are irrelevant and inadmissible. In published reports in Feb. 2008, Issa questioned whether the oversight committee was acting outside the scope of its authority in serving as a prosecutorial body.
Clemens is charged in Washington’s federal trial court with lying to Congress in 2008 when he denied using steroids and human growth hormone. Prosecutors are tasked with trying to convince jurors that the congressional inquiry was legitimate legislative activity. Issa was a member of the oversight committee at the time of Clemens's appearance in Congress.
William Pittard, a House General Counsel’s Office attorney representing Issa and the committee, said attorneys for Clemens at most would be able to elicit from Issa confirmation that his public statements are accurate. “Or, put another way, Mr. Clemens could not probe behind those statements without running afoul of the Speech or Debate clause,” Pittard said in court papers.
The Constitution's speech or debate clause gives some protection to lawmakers from being forced to testify about legislative activity.
Pittard said in a court filing today: “The available testimony would not be relevant because Chairman Issa’s alleged statements recount no more than his purported opinions, in 2008, on the wisdom of the investigation, not facts establishing or refuting the legality of that investigation.”
Two weeks after the Feb. 13, 2008, hearing, Congress referred the matter of Clemens’s testimony to the Justice Department for a criminal investigation. Clemens was charged in 2010 with perjury and obstruction. Issa said in a published report about the DOJ referral: “This was all about entrapping Roger Clemens.”
Issa’s statements before and after Clemens testified, Pittard said, “are part of the regular and appropriate discourse of Committee members as they consider the wisdom of the committee’s actions.”
Pittard said “there is nothing untoward about vigorous debate regarding the committee’s conduct of its business.”
DOJ lawyers today said in court papers (PDF) that even if Issa’s out-of-court statements are relevant, the remarks have no value. “At the time of the 2008 congressional hearings, Chairman Issa was just one of 41 members on the committee,” an assistant U.S. attorney, Courtney Saleski, said.
U.S. District Judge Reggie Walton, at an earlier hearing in the Clemens case, suggested out-of-court statements by members of Congress don’t carry much weight. Saleski quoted Walton from that hearing, when he said that “in today’s political world, there are objections regarding probably every hearing.”