Prosecutors defend House steroid hearings that ensnared Clemens

Federal prosecutors argued Wednesday that a powerful House committee was acting in the interests of the public health and welfare when it launched a probe of steroid use in baseball that ultimately ensnared Roger Clemens in a perjury indictment.

Attorneys made opening arguments in the trial of the former pitching star, who stands accused of lying to Congress in 2008 about whether he had used performance-enhancing drugs.

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The case could turn on the jury’s view of the legitimacy of the high-profile investigation of the House Oversight and Government Reform Committee, which invited Clemens to testify and then referred his case to the Justice Department when his forceful denials of steroid use contradicted testimony by his former trainer, Brian McNamee. 

Attorneys defending Clemens have indicated they will argue that the hearing in which Clemens testified was “not the due and proper exercise of the power of inquiry” of Congress.

The oversight committee “has the power to conduct investigations on almost any subject as long as it relates to the public health,” assistant U.S. attorney Steven Durham said in his opening statement, which lasted about 55 minutes. The panel, led in 2008 by Rep. Henry Waxman (D-Calif.), wanted to protect young people “from dangerous drugs and dangerous influences.”

“The way it went about it was it used its investigative authority,” Durham said.

The government said it would prove that Clemens was injected with performance-enhancing drugs by McNamee and then knowingly lied about it under oath to Congress. Durham emphasized that lawmakers did not force Clemens to testify, that he did so on his own. 

“This man was not subpoenaed. He was not forced to come ... to Congress, to testify. He was invited,” Durham said. “He raised his right hand and he testified under oath that he never used anabolic steroids.”

The trial, which began with jury selection last week, is taking place in a federal courthouse less than half a mile from the Capitol.

“These are very serious federal crimes,” Durham said. The charges — perjury, making false statements and obstruction of Congress — carry more than 30 years of prison time, but Clemens is likely to serve much less if convicted.

Clemens’s attorney Rusty Hardin presented a very different picture, suggesting that the Oversight Committee bullied the seven-time Cy Young award winner into presenting the same account that he already had given multiple times in public. Hardin told the jury that the pitcher’s camp urged the committee not to invite Clemens because the case already was being adjudicated in a civil case between Clemens and McNamee.

“‘All you’re trying to do is put him in the position of a trial by Congress,’” Hardin said Clemens’s attorneys told the committee. “‘Let it be handled in the courts where trials are supposed to be.’”

The committee “wouldn’t listen,” Hardin said, and threatened to subpoena Clemens if he didn’t come voluntarily. Congress went further, he said, and fired “a clear shot across the bow” at Clemens when it referred the case of another Major League Baseball star, Miguel Tejada, to the Justice Department around the same time.

Lawmakers “dared him to say under oath what [he had already said repeatedly in public],” Hardin said.

The committee’s attitude, he argued, contributed to the “adverse environment” Clemens faced when he testified in a nationally televised hearing in February 2008.

“Roger Clemens, unless he was comatose, always knew the danger of ... testifying,” Hardin said.

While the government said it would present DNA evidence that McNamee injected Clemens, Hardin said he would demonstrate that McNamee was a repeated liar who “betrayed” Clemens and manufactured the results of the DNA test.

“Roger Clemens’s only crime was having the poor judgment to stay connected to Brian McNamee,” Hardin said.

The government began presenting its case Wednesday afternoon with a veritable civics lesson for the jury, as it sought to demonstrate the legitimacy of the congressional hearings at the heart of the trial. Durham called as his first witness Charles Johnson, who served for 40 years (“to the day,” he said) as a parliamentarian for the House.

Seated on the witness stand, Johnson read aloud from Article I of the Constitution providing for the establishment of Congress. Minutes later, Durham asked him to use a telestrator, similar to the kind used in sports television broadcasts, to circle the U.S. Capitol and the House office buildings on an aerial photograph of Washington.

Johnson testified that the House Oversight Committee had broad authority to conduct investigations and could “bring to light important facts that don’t result in the passage of legislation.”

In cross-examination, Hardin pressed Johnson on whether there were limits to Congress’s investigatory power, hinting at his argument that lawmakers abused their power in calling Clemens and McNamee to testify.

“Congress is not authorized to conduct a criminal trial, correct?” Hardin asked.

“Correct,” Johnson replied.

Durham then successfully asked Johnson to assert that Congress has the authority to consider drug policy and to regulate businesses such as Major League Baseball.

The jury later heard testimony from Phil Barnett, who served as staff director for the Oversight Committee when Clemens testified. He defended the panel’s decision to hold the steroid hearings, citing the public-health interest.

Updated at 5:25 p.m.