Ex-WH lawyer: Congress may have overreached on Clemens

When a Congressional committee summoned Roger Clemens to testify at a nationally televised hearing in February 2008, it was trying to determine the accuracy of George J. Mitchell’s report, which had named Clemens as a user of steroids and human growth hormone.

According to a high-profile lawyer in Washington, the release of the Mitchell report at the behest of Commissioner Bud Selig and not Congress raises questions about why the committee was investigating the matter in the first place. And that, according to the lawyer, Reginald J. Brown, a former special assistant to President George W. Bush and an associate White House general counsel from 2003 to 2005, has given Clemens’s lawyers a strong argument to have the government’s perjury case dismissed.

“The case against Clemens is not a slam dunk for the government,” he said Friday in a telephone interview. He said that perjury charges could only be brought in connection with investigations conducted as part of those Congressional responsibilities outlined in the Constitution.

“Congress didn’t do this investigation to determine whether they needed new drug laws,” Brown said. “They didn’t do it to determine whether federal agencies were exercising their proper oversight. They did this to figure out whether Clemens or his trainer were telling the truth, and that is arguably not a legislative function. It’s not Congress’s job to hold perjury trials.”

Brown said the argument had been used successfully before to have perjury charges dismissed.

Clemens was indicted Thursday by a federal grand jury in Washington on charges that he lied about his use of performance-enhancing drugs when he testified before the House Committee on Oversight and Government Reform. Those statements directly contradicted Clemens's former trainer Brian McNamee, who had been compelled by federal prosecutors to cooperate with Mitchell to avoid being charged with steroid distribution.

The ranking member of the committee at the time, Tom Davis, Republican of Virginia, said Thursday that the hearing was held because the validity of the Mitchell report had been questioned by Clemens, the highest-profile player named in the report. The report, released in December 2007, also named about 100 players for their ties with performance-enhancing drugs.

On Friday, Davis reiterated those statements to ESPNNewYork.com. “This wasn’t a mandatory hearing,” Davis said. “We weren’t hanging Clemens out to dry. We were only giving him an opportunity to refute the Mitchell report and to tell his side of the story.”

Davis’s statements, Brown said, will most likely lead Clemens’s lawyers to argue that the committee had overstepped its powers.