Former major-league baseball great Roger Clemens's legal team has subpoenaed the House Oversight and Government Reform Committee for documents in preparation for the former pitcher's July trial on federal charges of perjury, making false statements, and obstruction of Congress.
The subpoena seeks any communications tied to the committee’s activities related to its follow-up hearings on “The Mitchell Report: Illegal Use of Steroids in Major League Baseball,” the blockbuster December 2007 MLB-sanctioned study that documented steroid use by players.
But whether a congressional committee can be compelled to turn over such documents is doubtful given the protections that members of Congress have under the Constitution’s "speech or debate" clause.
“I would think that [the requested materials] would almost certainly fall within” the clause, said Stanford University Law School professor Michael McConnell, a former federal Appellate judge and a prominent constitutional law expert.
McConnell noted that he would be hard-pressed to say how the committee’s activities would not be protected under the clause.
George Washington University law professor Jonathan Turley agreed, saying the Supreme Court also has held that privileges of the speech or debate clause also extend to congressional aides in such inquiries.
But he said there could be a question regarding material that has already been given to prosecutors by the committee.
“The constitutional claims would be arguably waived on some disclosures to the Department of Justice,” he said.
The subpoena, made public by the committee today—almost three years after Clemens testified before the panel on February 13, 2008—asks for "interview summaries, notes, and memoranda" related to other hearing witnesses to be turned over at a hearing in U.S. District Court on March 14.
“The committee intends to consult with the House General Counsel’s office and will meet its obligations in this matter,” Kurt Bardella, spokesman for House Oversight Committee Chairman Darrell Issa, R-Calif., responded in a statement today,
Houston lawyer Rusty Hardin, who heads Clemens’s legal team, did not immediately return a message left at his office seeking comment. Another Clemens lawyer, Michael Attanasio of San Diego, is listed as the attorney who requested the subpoena. He also could not be reached.
The subpoena specifically asks for all communications by the committee, “United States Representatives, and its staff,” with a list of 20 individuals interviewed, including former major-league players Jose Canseco, Andy Pettitte, and Chuck Knoblauch.
The subpoena also names Brian McNamee, Clemens's former personal trainer; four doctors; and Kirk Radomski, a former New York Mets bat boy, equipment manager, and clubhouse assistant. Randomski has admitted to selling banned drugs, including anabolic steroids. McNamee claimed that Clemens used steroids and human-growth hormone.
Rep. Henry Waxman, D-Calif., was the Oversight chairman when the committee spent more than a month looking into the fallout from the Mitchell report, including hearing Clemen's testimony, which was televised.
Clemens faces six felony counts: one count of obstruction of Congress, three counts of making false statements, and two counts of perjury. The charges are tied to his appearance before the committee, in which he denied ever using performance-enhancing drugs
He pleaded not guilty in August.