Jose de Jesus Ortiz
December 8, 2010
For almost two years, former Sen. George Mitchell's investigators traveled the country looking into the use of performance-enhancing drugs in baseball. Once Mitchell's report for Major League Baseball implicated former Astro Roger Clemens and several other prominent players, Congress went digging some more.
On Wednesday, Clemens' attorney, Rusty Hardin, vowed to do his own digging to uncover evidence. The Mitchell commission is claiming attorney-client and attorney work-product privileges. The House Oversight and Government Reform Committee has retained some evidence by claiming the separation of powers between the legislative and judicial branches.
Some attorneys predict that both will ultimately have to turn over evidence once Hardin files a subpoena for the material in question.
"I think that Clemens is going to be able to get information in that there's no separation of powers in this particular case," said former federal prosecutor Philip Hilder, who represented Enron whistle-blower Sherron Watkins in congressional hearings. "If this evidence is deemed to be exculpatory or favorable to them, then the government, regardless of branch, has the ethical obligation to turn (it) over."
During a status hearing Wednesday in Washington, federal Judge Reggie Walton granted Hardin's request for a three-month trial postponement from April until July. The delay allows Hardin to examine 54,000 pages of discovery material provided by prosecutors.
In August, a federal grand jury indicted Clemens on charges of perjury, making false statements and obstruction of Congress, putting the seven-time Cy Young Award winner in danger of a $1.5 million fine and a maximum 30-year prison sentence.
Based on the Mitchell report, which came at the request of MLB commissioner Bud Selig, and Clemens' decision to deny its claims that he used performance-enhancing drugs, the House Oversight and Government Reform Committee held hearings. Once Clemens repeated his denials at a hearing in February 2008, Congress ultimately asked the Justice Department to investigate whether he perjured himself, which ultimately led to multiple indictments in August.
If the Mitchell commission shared information with the committee, its claims of attorney-client and attorney work-product privileges could be compromised, making the information in question available to Hardin.
"If the Mitchell investigators shared information with the congressional investigators or staff," Hilder said, "then any privilege would be waived and Mr. Clemens would be entitled (to the material)."
The congressional committee's separation-of-powers stance might stand on thin ice as well, according to Hilder and Dallas-based defense attorney Barry Sorrels, who has represented NFL and NBA players.
"As far as separations between the congressional committee and the prosecution, the line is pretty thin," Sorrels said. "And it's going to take a judge to decide if it exists at all."
The postponement means that Clemens' case would start four months after Barry Bonds' scheduled March perjury trial, which also centers around use of performance-enhancing drugs.
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