Bloomberg News

Clemens Loses Bid to Call U.S. Lawmaker Issa as Witness

June 04, 2012

Former New York Yankees pitcher Roger Clemens, accused of lying to Congress by denying his use of steroids, lost a bid to call Representative Darrell Issa as a witness at his federal perjury trial in Washington.

U.S. District Judge Reggie Walton, ruling from the bench today, said testimony from Issa, a California Republican who made public comments criticizing the Clemens probe in 2008, was “too speculative” to be allowed. Walton said Issa later issued statements backing the perjury prosecution.

“It is extremely, highly speculative what he would say,” Walton said. “There’s no definitive indication this witness would provide testimony that would, in fact, exonerate the defendant.”

Issa asked Walton to block two subpoenas from Clemens received last month seeking his testimony and documents from the House Committee on Oversight and Government Reform. Issa is now the chairman of the committee, whose leaders in 2008 referred Clemens to prosecutors based on suspected perjury.

The jurors weren’t present during today’s hearing in the trial, now in its eighth week. They are scheduled to return tomorrow as testimony by witnesses resumes.

Denies Use

Clemens has denied drug use since former U.S. Senator George Mitchell released a report on steroids in Major League Baseball on Dec. 13, 2007. Mitchell named Clemens in the report as having used drugs on 16 occasions between 1998 and 2001.

The criminal charges stem from statements Clemens made to the oversight committee in February 2008 during a private interview with committee staff and later in a public hearing on ballplayers’ use of performance-enhancing drugs. Under oath, Clemens denied ever using steroids or human growth hormone, according to the indictment.

Clemens sought Issa’s testimony to rebut Phil Barnett, a former chief of staff to the House committee who testified that the congressional hearing served a legitimate legislative purpose. Lawyers for Clemens argued that their client has a right under the U.S. Constitution’s Sixth Amendment to challenge Barnett’s testimony.

Clemens’s lawyers cited Issa’s statements to the media before and after the Feb. 13, 2008, hearing that Congress never prosecuted or pursued users of drugs and that the committee was seeking publicity by inviting Clemens to testify. Issa, they argued, was an important voice because he was the only lawmaker to attend Clemens’s congressional deposition.

‘Highly Critical’

“We know that now chairman Issa was highly critical and said there’s no legitimate purpose and said it was a perjury trap set for Roger Clemens,” Joe Roden, a lawyer for Clemens, told Walton.

Issa’s statements at the time were “opinions” that “are not relevant to whether the committee had the power to conduct an investigation,” William Pittard, deputy general counsel to the House of Representatives, said during the hearing.

Assistant U.S. Attorney Steven Durham argued that Issa was just one of 41 members of the committee. He also read a statement from Issa’s spokesman from the day Clemens was indicted, which said, “If there is evidence that someone has intentionally misled a congressional investigative committee, they should be prosecuted to the fullest extent possible.”

‘No Question’

Walton said “there’s no question Congress had a legitimate investigative purpose” to examine steroid use in baseball, citing Major League Baseball’s antitrust exemption and evidence of a rise in younger athletes’ using performance-enhancing drugs.

“I find it difficult to conclude one congressperson’s statements to the press is competent evidence to undermine the integrity of the committee to hold these hearings,” Walton said.

He also said Issa’s testimony could backfire on Clemens.

“You’d take that risk and put this man on stand when he said he believed your client lied,” Walton said. “That seems to me to be a death wish.”

Also today, Durham said prosecutors have sought permission from the U.S. Justice Department to grant immunity to Eileen McNamee so she can testify for the defense. Durham said he expected to hear back from the department today.

Rusty Hardin, a lawyer for Clemens, said Eileen McNamee will discredit the prosecution testimony of her husband, Brian McNamee. The two are involved in a divorce proceeding in New York.

Criminal Exposure

Michael Gold, a lawyer for Eileen McNamee, said during a May 31 hearing that the possible criminal exposure his client faces includes mail and wire fraud, insurance fraud tied to the reimbursement of prescription drugs, bank fraud and obstruction of justice.

Clemens, a seven-time Cy Young Award winner, is charged with one count of obstructing a congressional investigation, three counts of making false statements and two counts of perjury stemming from his testimony to the House panel. He faces as long as 21 months in prison if convicted.

The case is U.S. v. Clemens, 1:10-cr-00223, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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