Lawyers for Roger Clemens today argued unsuccessfully to convince a federal judge in Washington to force Rep. Darrell Issa (R-Calif.) to testify at the former baseball pitcher's trial on perjury and obstruction charges.
The attorneys, including Joe Roden, said Clemens has a right to question Issa, now the chairman of the House Committee on Oversight and Government Reform, over his remarks in February 2008 about the merits of a congressional hearing about drug use in baseball.
Issa expressed concern then in statements to reporters about the underlying legitimacy of the hearing at which Clemens testified. Clemens’s denial of using performance-enhancing drugs is the heart of the perjury case against him in U.S. District Court for the District of Columbia.
U.S. District Judge Reggie Walton this afternoon refused to force Issa to testify. Walton said he was not convinced that Issa’s testimony was “competent” to challenge the prosecution's position that the congressional hearing was a legitimate legislative purpose.
A lawyer for the House of Representatives general counsel’s office, William Pittard, had urged Walton to rule that Issa is protected from being forced to testify. Pittard pointed to the Constitution’s “speech or debate” clause, which gives lawmakers some immunity from being compelled to testify about legislative activity.
Roden, a lawyer in the law office of Russell “Rusty” Hardin Jr., said Clemens’ rights to a fair trial trump any legislative protection to which Issa is entitled.
Walton said he was concerned that forcing Issa to testify could end up "trampling" the speech or debate clause.
In the end, Walton did not reach the merits of the speech or debate clause. Instead, the judge barred Issa's testimony on evidentiary grounds.
Issa’s proposed testimony, the judge said, is speculative. Clemens’ defense lawyers do not know for certain what Issa would say on the stand. Walton noted Issa “could bury your client” with negative testimony.
Prosecutors must convince jurors that the congressional hearing in 2008 was legitimate legislative activity. Early in the Clemens trial, the government called a congressional staffer, Phil Barnett, who in 2008 was on the House oversight committee’s Democratic majority staff.
Clemens’ lawyers contend the hearing was outside the scope of congressional authority. Roden today said that Issa in 2008 considered the hearing a “perjury trap” for Clemens.
The committee, Roden said, knew Clemens would deny using steroids and human growth hormone. Clemens made that denial on the CBS program “60 Minutes” before the scheduled hearing.
The motivation of legislators should not be dragged into the trial, Pittard said today in court. Legislation in connection to drug policy or antitrust matters could have flowed from the 2008 hearing, Pittard said. (No legislation came out of the hearing, however.)
Pittard said the House oversight committee “made a great deal of effort” to be fair to Clemens.
The committee, he said, provided transcripts of depositions of Clemens and from witnesses Brian McNamee and Andy Pettitte. Transcribed interviews, declarations and affidavits, in addition to handwritten staff notes, were also disclosed to the defense lawyers, he said.
Assistant U.S. Attorney Steve Durham, a public corruption prosecutor in Washington, urged Walton not to wade into the speech or debate clause. Durham spoke about the speculative nature of Issa’s testimony.
After the Clemens indictment was issued in August 2010, Durham noted, a spokesman for Issa said in a statement that no matter a person’s status in life, he or she “should be prosecuted to the fullest extent possible.”
Durham also said Issa’s opinion has little weight at trial because his view only reflects one of the 41 members of the oversight committee.
Allowing Issa to testify, Walton said, would have extended the trial longer than it’s already dragged on. The judge said prosecutors would have been allowed, in fairness, to call lawmakers who supported the 2008 congressional hearing.
The jury didn't hear testimony today. Walton dedicated the afternoon to hear disputes over legal issues. The trial resumes Tuesday morning.