Legal Commentary

Sunday Night Open Thread: What's Behind All the Emotion?

By Jeralyn

The furor over the Islamic Center continues, as protests were held in Manhattan by those on both sides. I still don't get the opposition to it, and why it's such a big deal. All that raw emotion and anger seems like it could be better spent on something positive.

Nor do I understand the anger over whether Roger Clemens took steroids, or why everyone seems to think that the word of a trainer who cut a deal and a former player who thinks he remembers an admission made in 1999 is grounds for a six count Indictment. Prosecuting the famous seems to be the new big thing.

Here's one view of a legal defense Clemons might have according to a former White House lawyer as reported in the New York Times: Congress may not have been authorized to call Clemons in the first place. [More...]

What was the point of the hearing? What bill was under consideration? What government agency was thought to failing its duties? Wasn't this just about a private report in which a celebrity player denied using steroids after other players said he did? What government interest was served by proving either side right or wrong?

“Congress didn’t do this investigation to determine whether they needed new drug laws,” [Reginald]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 refers to a case from 1956 called U.S. v. Icardi which held:

"It is unneccessary for the court to determine for which purpose Icardi's testimony was sought or obtained, since neither affording an individual a forum in which to protest his innocence nor extracting testimony with a view to a perjury prosecution is a valid legislative purpose.....If the committee is not pursuing a bona fide legislative purpose when it secures the testimony of any witness, it is not acting as a 'competent tribunal', even though the very testimony be relevant to a matter which could be the subject of a valid legislative investigation."

As to Congress' legislative purpose, here's what the Committee said at the time. The purpose seems not to be any legislative function, but to test the accuracy of the Mitchell Report's claims about Clemens and about "baseball's history with performance-enhancing substances."

Given the Committee’s past work and our interest in an accurate record of baseball’s steroids era, we have investigated the evidence in Senator Mitchell’s report that relates to Mr. McNamee and the players he identified. Tom Davis and I made this decision reluctantly. We have no interest in making baseball a central part of our Committee’s agenda. But if the Mitchell report is to be the last word on baseball’s past, we believed we had a responsibility to investigate a serious claim of inaccuracy.

Clemons' attorney, Rusty Hardin, said this week:

"Keep in mind what happened here. A private citizen publicly denies accusations made by a private group, namely the Mitchell Commission. Congress knows that's what he's going to say. Congress invites him to appear. Makes it clear that if he doesn't come voluntarily he'll be compelled. He comes, he denies under oath, does the very thing they knew he was going to do - and then they get him indicted for perjury. Somewhere, sooner or later in this debate, I hope somebody questions if that makes sense."

Always good reading: Bennett Gersham's 1981 "The Perjury Trap."

This is an open thread, all topics welcome.

Full post as published by TalkLeft on August 22, 2010 (boomark / email).