Known on Capitol Hill for wielding his own subpoena power, Issa is fighting a subpoena from Clemens’s attorneys, who say that their client has a right to confront his accuser. House lawyers say Issa is too busy to appear in court and is shielded from doing so by a relatively obscure provision of the Constitution.
Legal experts are split in their opinions on how Walton might rule, but they mostly agree that the showdown highlights a central absurdity of the trial: Lawmakers sought the Justice Department investigation into Clemens’s testimony but won’t appear in court. . . .
To make their case, prosecutors must prove that Clemens lied and that those false statements were “material,” or important, to Congress’s work. But lawmakers on the committee have not testified to help prosecutors prove that element of the alleged offense. Rep. Henry A. Waxman (D-Calif.), then-chairman of the committee, refused to comment on why he did not take the stand, citing a judicial “gag” order. Issa, the current chairman, also declined to comment. . . .
But not all members of Congress felt that way. At least one congressman called the hearing a “show trial,” and the Republican minority staff issued a lengthy and highly critical report about the allegations contained in the Mitchell report.
And then there is Issa, who ascended to chairman in 2011 after Republicans took control of the House. The California congressman had seemed perturbed that the committee was holding the hearing, saying it appeared too focused on alleged steroid use by an individual player.
“We’re not prosecutors, and we’re not supposed to worry about a former pusher and a former [alleged] user,” he said. “We’re supposed to be dealing with a whole industry that had a problem.”
He also described the hearings as a witch hunt. “We don’t really have a mandate to be looking at this,” he told New York’s Daily News. “To me, it smacks of the McCarthy era.” He later told the same newspaper that “this was all about entrapping Roger Clemens.”
For obvious reasons, Clemens’s attorneys would like to have Issa repeat those comments to the jury and allow the defense to attack the “materiality” of the charges. If the committee’s chairman thought the hearing was a farce, they argue, how can jurors convict someone of lying during the proceedings?
So they subpoenaed Issa. In lengthy legal filings, House lawyers argued that Issa is too busy to testify and is protected by the Constitution’s “Speech or Debate” clause, which they wrote “bars compelled testimony about legislative acts.”
Clemens’s legal team, led by attorneys Rusty Hardin and Michael Attanasio, argued that Clemens’s right to a fair trial trumps any such protections for lawmakers, especially when the testimony would allow them to undercut a key element of the case. Issa, who attended part of the House investigators’ deposition of Clemens, is “well positioned to opine about the legislative purpose of the questions to Mr. Clemens and the materiality of his answers to those questions,” the pitcher’s attorneys wrote. “And Chairman Issa’s numerous comments to the media leave no doubt that his testimony will be” helpful to Clemens’s defense.