Roger Clemens’ Defense to Perjury

As the second trial of Roger Clemens moves forward, Clemens’ lawyers have submitted a trial brief to the Court outlining issues that they believe amount to a defense. The issues presented amount to three questions: 1) Whether the government can prove that the U.S. House Committee on Oversight and Government Reform was a competent tribunal? This is the body to whom Clemens testified under oath about his knowledge and involvement with performance enhancing drugs. 2) Whether the due and proper exercise of the power of inquiry under which the congressional committee conducted its investigation was obstructed? And, 3) Whether any alleged false statements made by Clemens were made in a matter “within the jurisdiction” of the legislative branch–congress?  At the heart of the trial is whether Clemens lied to congress when he voluntarily testified that he never used performance enhancing drugs while playing major league baseball.

Clemens’ attorneys say that the government must prove all such points beyond a reasonable doubt to convict Clemens and that all three elements must go to the jury and that the jury must decide the issue on a point-by-point basis rather than in a general context of Congressional inquiry.

Clemens is charged with obstruction of Congress, false statements and perjury. Clemens’ trial brief is narrowly focused, discussing only the issue of perjury. Arguing that perjury requires that an oath be taken before “a competent tribunal,” the defense argues that this then becomes an essential element of the perjury charge. The defense claims that the Government has conceded such an element is properly a part of the charge. The defense believes that it is up to the jury and not the court to decide what is “competent.” It appears that the prosecution concedes this point. The defense also requests that Clemens be able to put on evidence at trial to get at the issue of competency.

The defense argues that a Congressional tribunal is competent only on a question-by-question basis, only qualifying as competent if the question asked seeks to elicit facts in aid of legislation. Clemens’ attorneys conceded that a legitimate legislative purpose will be presumed when the general subject of investigation is one concerning something over which Congress can legislate, but that any presumption in a criminal case may be rebutted by adequate evidence to the contrary. Expect argument over the proper role of congress in oversight of performance enhancing drugs specifically and baseball generally.

The defense goes on to list examples of Congressional overreach where an investigation exceeded legislative authority. The examples given by the defense include overreaching power of law enforcement, usurping the powers of a prosecutor in the guise of legislative investigation, conducting a hearing for a purpose other than the stated purpose and extracting testimony with a view to a perjury prosecution.

The defense is trying to make its case that Clemens cannot be found guilty of perjury if the Congressional Committee he was before is declared illegitimate. The brief concludes by requesting that as the issue is an essential element of the case, Mr. Clemens be given his Constitutional right to introduce evidence on the subject to the empanelled jury.

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