Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 1 of 47 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 1 of 47 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) UNITED STATES OF AMERICA ) ) v. ) Case No. 1:10-CR RBW ) WILLIAM R. CLEMENS, ) ) Defendant. ) ) MOTION OF U.S. REPRESENTATIVE DARRELL ISSA AND THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM OF THE U.S. HOUSE OF REPRESENTATIVES TO QUASH SUBPOENAS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT May 18, 2012 KERRY W. KIRCHER, D.C. Bar # General Counsel WILLIAM PITTARD, D.C. Bar # Deputy General Counsel CHRISTINE DAVENPORT, N.J. Bar # Senior Assistant Counsel KIRSTEN W. KONAR, D.C. Bar # Assistant Counsel TODD B. TATELMAN, VA Bar #66008 Assistant Counsel MARY BETH WALKER, D.C. Bar # Assistant Counsel Office of General Counsel United States House of Representatives 219 Cannon House Office Building Washington, D.C Telephone: (202) Facsimile: (202) William.Pittard@mail.house.gov Counsel for the Honorable Darrell Issa and the Committee on Oversight and Government Reform of the U.S. House of Representatives

2 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 2 of 47 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii INTRODUCTION...1 BACKGROUND...2 I. Authority of the Committee...2 II. Committee Investigation...3 III. IV. Committee Involvement in Executive Branch Prosecution of Mr. Clemens...9 Mr. Clemens Current Subpoenas to Chairman Issa and the Committee...13 ARGUMENT...14 I. Mr. Clemens Subpoenas Should Be Quashed Because Chairman Issa and the Committee Are Absolutely Privileged from Testifying or Disclosing Documents Where, as Here, Such Testimony and Documents Pertain to Legitimate Legislative Conduct...14 A. The Committee s Investigation Constituted Legitimate Legislative Conduct Supreme Court and D.C. Circuit Authority Provide the Legislative Branch Wide Latitude in Adjudging Whether Congressional Conduct Constitutes Legitimate Legislative Activity, Eastland, 421 U.S. at This Court Correctly Applied This Precedent in Recognizing That the Committee Engaged in Legitimate Legislative Conduct in Hearing from Mr. Clemens...19 B. Because Mr. Clemens Demands Information Concerning the Committee s Legitimate Legislative Conduct, His Subpoenas Should Be Quashed...23 II. Mr. Clemens Subpoena to Chairman Issa Also Should Be Quashed Because Mr. Clemens Cannot Establish the Extraordinary Circumstances Required to Compel the Testimony of a High-Ranking Government Official...27 i

3 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 3 of 47 III. IV. Mr. Clemens Subpoena to the Committee Also Should Be Quashed Because It Fails to Demand Documents with Sufficient Particularity and Because Mr. Clemens Cannot Establish Either the Relevance or the Admissibility of the Demanded Documents...31 Mr. Clemens Subpoenas Also Should Be Quashed Because They Are Untimely...36 CONCLUSION...38 CERTIFICATE OF SERVICE ii

4 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 4 of 47 TABLE OF AUTHORITIES Constitutional Provisions U.S. Const. art. I, 5, cl * U.S. Const. art. I, 6, cl Statutes and Other Legislative Authorities Rule X.4(c)(2), Rules of the House of Representatives, 110th Cong. (2007)...2 Rule X.4(c)(2), Rules of the House of Representatives, 112th Cong. (2011)...2 * Fed. R. Crim. P Dep. of Wm. R. Clemens, Comm. on Oversight & Gov t Reform, U.S. House of Representatives (Feb. 5, 2008)...7 Drugs in Sports: Compromising the Health of Athletes & Undermining the Integrity of Competition: Hr g before the Subcomm. on Commerce, Trade & Consumer Protection of the H. Comm. on Energy & Comm., 110th Cong. (Feb. 27, 2008)...21 Myths & Facts About Human Growth Hormone, B-12, & Other Substances: Hr g before the H. Comm. on Oversight & Gov t Reform, 110th Cong. (Feb. 12, 2008)...21 Restoring Faith in America s Pastime: Evaluating Major League Baseball s Efforts to Eradicate Steroid Use: Hr g before the H. Comm. on Gov t Reform, 109th Cong. (Mar. 17, 2005)...3 The Mitchell Report: The Illegal Use of Steroids in Major League Baseball: Hr g before the H. Comm. on Oversight & Gov t Reform, 110th Cong. (Jan. 15, 2008)...5, 20, 21 The Mitchell Report: The Illegal Use of Steroids in Major League Baseball, Day 2: Hr g before the H. Comm. on Oversight & Gov t Reform, 110th Cong. (Feb. 13, 2008)...8, 9, 21 Cases Bardoff v. United States, 628 A.2d 86, 90 (D.C. 1993)...27 iii

5 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 5 of 47 * Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995)...14, 18, 24 Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306 (D.C. Cir. 2010)...1 Cano v. Davis, No. 01-cv (C.D. Cal. Mar. 28, 2002)...28 Consumers Union of the U.S., Inc. v. Periodical Corrs. Ass n, 515 F.2d 1341 (D.C. Cir. 1975)...20 Doe v. McMillan, 412 U.S. 306 (1973)...passim * Eastland v. U.S. Servicemen s Fund, 421 U.S. 491 (1975)...passim * Gravel v. United States, 408 U.S. 606 (1972)...1, 14, 15 Hankins v. City of Phila., No , 1996 WL (E.D. Pa. Sept. 12, 1996)...28 In re FDIC, 58 F.3d 1055 (5th Cir. 1995)...27, 28 In re Office of Inspector Gen., 933 F.2d 276 (5th Cir. 1991)...27 In re United States, 985 F.2d 510 (11th Cir. 1993)...28 Kalka v. Hawk, 215 F.3d 90 (D.C. Cir. 2000)...2 Marisol A. v. Giuliani, No. 95-CIV-10533, 1998 WL (S.D.N.Y. Mar. 23, 1998)...28 McGrain v. Daugherty, 273 U.S. 135 (1927)...16 McNamee v. Commonwealth of Massachusetts, No. 12-cv (D. Mass. May 10, 2012)...28 * McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc)...16, 17, 25, 26 iv

6 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 6 of 47 * MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988)...passim Pentagen Techs. Int l, Ltd. v. Comm. on Appropriations, 20 F. Supp. 2d 41 (D.D.C. 1998)...18 Springfield Terminal Ry. Co. v. United Transp. Union, No , 1989 WL (D.D.C. May 18, 1989)...27 State Bd. of Pharmacy v. Super. Ct., 144 Cal. Rptr. 320 (Cal. Ct. App. 1978)...27 United States v. Ballin, 144 U.S. 1 (1892)...20 United States v. Ehrlichman, 389 F. Supp. 95 (D.D.C. 1974)...18 United States v. Johnson, 383 U.S. 169 (1966)...19, 35 United States v. Lattimore, 215 F.2d 847 (D.C. Cir. 1954)...32 * United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) United States v. Morgan, 313 U.S. 409 (1941)...27 * United States v. Nixon, 418 U.S. 683 (1974)...31, 33 United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (D.D.C. 1981)...18, 24 United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995)...31 United States v. Smith, 286 U.S. 6, 33 (1932)...20 United States v. Wecht, Crim. No. 06-CR-0026, 2008 WL (W.D. Pa. Jan. 30, 2008)...37 Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984)...20 v

7 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 7 of 47 Weinstock v. United States, 231 F.2d 699 (D.C. Cir. 1956)...32 Wirtz v. Local 30, Int l Union of Operating Eng rs, 34 F.R.D. 13 (S.D.N.Y. 1963)...27 Other Authorities Alyson Footer, Clemens lawyer plans own investigation: Statement comes days after pitcher issues video denial, MLB.com (Dec. 27, 2011)...7 Duff Wilson & Michael S. Schmidt, Clemens s Legal Team Adds Private Investigators, N.Y. Times (Dec. 27, 2007)...6 Gene Duffey, Clemens Reveals Taped Call with His Accuser, Austin American-Statesman (Jan. 8, 2008)...6 George Mitchell, Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major league Baseball (Dec. 13, 2007)...4, 5, 9, 20 H. Comm. on Oversight & Gov t Reform (Website), Howard Fendrich, McNamee Arrives for Deposition; Clemens Back on Hill, Associated Press (Feb. 7, 2008)...6 Letter from Hon. Darrell Issa, Chairman & Hon. Elijah Cummings, Ranking Member, H. Comm. on Oversight & Gov t Reform, to Roger Goodell, Comm r, Nat l Football League & DeMaurice Smith, Exec. Dir., Nat l Football League Players Ass n (Oct. 28, 2011)...34 Letter from Hon. Henry Waxman, Chairman & Hon. Tom Davis, Ranking Member, H. Comm. on Oversight & Gov t Reform, to Hon. Michael Mukasey, U.S. Att y Gen. (Feb. 27, 2008)...9 Letter from Robert DuPuy, President & COO, Major League Baseball to Hon. Tom Davis & Hon. Henry Waxman (May 20, 2005)...4 Mike Wallace, Roger Clemens Interview, CBS News; 60 Minutes (aired Jan. 6, 2008) vi

8 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 8 of 47 Press Release, Henry Waxman, Chairman & Tom Davis, Ranking Member, H. Comm. on Oversight & Gov t Reform, Waxman & Davis Joint Statement on Mitchell Report (Dec. 13, 2007)...5 Roger Clemens [YouTube Video] (posted Dec. 23, 2007) vii

9 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 9 of 47 Pursuant to Rules 17(c)(2) and 47 of the Federal Rules of Criminal Procedure, the Honorable Darrell Issa, U.S. Representative for the 49th congressional district of California and Chairman of the Committee on Oversight and Government Reform of the U.S. House of Representatives (the Committee ), and the Committee, through counsel, respectfully move for an order quashing the May 2, 2012 subpoena ad testificandum issued to Chairman Issa and the May 10, 2012 subpoena duces tecum issued to the Committee, both by defendant William R. Clemens. The subpoenas are attached as Exhibits A and B, respectively. A proposed order is attached as Exhibit C. INTRODUCTION In the midst of trial, Mr. Clemens for the first time has expressed an interest in obtaining the testimony of Chairman Issa and, for the second time, has expressed an interest in obtaining Committee documents. (In April 2011, the Court quashed Mr. Clemens first subpoena for Committee documents, see infra pp ). Mr. Clemens has expressed both interests through subpoenas purporting to compel that testimony and those documents. The subpoenas are barred by the Constitution s Speech or Debate Clause, U.S. Const. art. I, 6, cl. 1. See, e.g., Eastland v. U.S. Servicemen s Fund, 421 U.S. 491, 501, 503 (1975) (Speech or Debate privilege which privilege is absolute applies where subpoenaing party demands testimony or documents in connection with congressional conduct within the sphere of legitimate legislative activity ); Gravel v. United States, 408 U.S. 606, 625 (1972) (congressional aide subject to grand jury subpoena only insofar as questions do not require testimony about or impugn a legislative act ); see also infra Argument, Section I. However, the subpoenas also should be quashed on non-constitutional grounds. See Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1312 (D.C. Cir. 2010) ( Federal courts should 1

10 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 10 of 47 not decide constitutional questions unless it is necessary to do so. (quotation marks omitted)); accord Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000). In particular, the subpoena to Chairman Issa should be quashed because high-ranking government officials may not be compelled to testify absent extraordinary circumstances, including that the official is uniquely able to offer that testimony, unlike here. See infra Argument, Section II. The subpoena to the Committee should be quashed because it fails to demand with adequate specificity documents relevant and admissible in this trial. See infra Argument, Section III. And both subpoenas should be quashed as untimely. See infra Argument, Section IV. BACKGROUND I. Authority of the Committee. The U.S. House of Representatives maintains a power of inquiry... as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution. Eastland, 421 U.S. at 504 n.15. The Court has often noted that the power to investigate is inherent in the power to make laws because a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Id. at 504 (quotation marks and brackets omitted). The House, through its rules, has delegated the full power of that investigative authority to its Oversight and Government Reform Committee, which Committee at all relevant times has been, and remains today, the principal investigative committee of the House: [T]he Committee... may at any time conduct investigations of any matter.... Rule X.4(c)(2), Rules of the House of Representatives, 112th Cong. (2011) (emphases added), attached as Exhibit D; Rule X.4(c)(2), Rules of the House of Representatives, 110th Cong. (2007) (emphases added), attached as Exhibit E (same). 2

11 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 11 of 47 II. Committee Investigation. In March 2005, following (1) a flurry of allegations regarding steroid use in professional sports, and particularly professional baseball, and (2) a documented concurrent increase in steroid use by teenage athletes, the Committee held hearings on those subjects. See, e.g., Restoring Faith in America s Pastime: Evaluating Major League Baseball s Efforts to Eradicate Steroid use: Hr g before the H. Comm. on Gov t Reform, 109th Cong. 2 (Mar. 17, 2005), (Chairman Tom Davis: Yesterday, USA Today reported that 79 percent of Major League players surveyed believed steroids played a role in record-breaking performances by some high profile players. ; A majority of the 568 players in this survey think steroids are influencing individual achievements. ); id. at 2 (Chairman Davis: [E]vidence strongly suggests that steroid use among teenagers, especially aspiring athletes, is a large and growing problem. The Centers for Disease Control and Prevention tells us that more than 500,000 high school students have tried steroids, nearly triple the number just 10 years ago. A second national survey conducted in 2004 by the National Institute on Drug Abuse and the University of Michigan found that over 40 percent of 12th graders describe steroids as fairly easy or very easy to obtain. ). Experts consulted by the Committee linked the use of steroids by professional athletes to the increased incidence of the use of those substances by teenage athletes. See, e.g., id. at 125, 127 (testimony by Nora Volkow, M.D., Director of the National Institute on Drug Abuse, a component of the National Institutes of Health: Recently, we have been hearing a great deal about the abuse of anabolic steroids by professional athletes, many of whom are regarded as role models by today s youth. ; [W]e are very concerned about the misleading positive messages being conveyed on the abuse 3

12 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 12 of 47 of these drugs by well-known professional athletes. These could undermine our work prevention and education efforts. ). At the Committee s insistence, Major League Baseball ( Baseball ) agreed to hire an independent analyst to investigate the extent of Baseball s performance enhancing substance abuse problem and, based on that investigation, to make recommendations for Baseball s appropriate response to that problem. See, e.g., Letter from Robert DuPuy, President & COO, Major League Baseball to Hon. Tom Davis, Ranking Minority Member & Hon. Henry Waxman, Chairman (May 20, 2005), attached as Exhibit F, at 1 ( You have urged Major League Baseball... to conduct an investigation.... You have also indicated that if Major League Baseball elects not to pursue such an investigation, the [Committee] would conduct its own investigation. ). Major League Baseball hired former U.S. Senator and Ambassador George Mitchell to conduct that investigation and formulate those recommendations. See George Mitchell, Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major league Baseball at SR-5 (Dec. 13, 2007), ( Mitchell Report ). On December 13, 2007, Mr. Mitchell issued a 409-page report based on interview[s of] more than 700 witnesses in the United States, Canada, and the Dominican Republic and the review of more than 100,000 pages of documents. Id. at B-3, B-4. That report concluded that [t]he use of steroids in Major League Baseball was widespread at least until the then-recent advent of mandatory testing, at which time [m]any players... shifted to human growth hormone, which is not detectable in any currently available urine test. Id. at SR Among 1 The Mitchell Report also noted the concern that animated the Committee s consideration of the abuse of performance enhancing substances in professional sports: 4

13 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 13 of 47 the players identified by the Mitchell Report as using steroids and human growth hormone (indeed, the most prominent such player) was defendant William R. Clemens. See id. at Upon the release of the Mitchell Report and in reliance on its apparent credibility, the Committee began to press Baseball to implement the recommendations of the Report. See Press Release, Henry Waxman, Chairman & Tom Davis, Ranking Member, H. Comm. on Oversight & Gov t Reform, Waxman & Davis Joint Statement on Mitchell Report (Dec. 13, 2007), attached as Exhibit G. The Committee, for example, scheduled a hearing, ultimately held on January 15, 2008, (i) to receive the testimony of Mr. Mitchell regarding his findings and recommendations, and (ii) to receive the testimony of Major League Baseball commissioner Bud Selig and Major League Baseball Players Association executive director Donald Fehr regarding their willingness to implement those recommendations. See id.; The Mitchell Report: The Illegal Use of Steroids in Major League Baseball: Hr g before the H. Comm. on Oversight & Gov t Reform, 110th Cong. (Jan. 15, 2008), 110hhrg55749.pdf ( January 15, 2008 Committee Hearing ). Mr. Clemens, for his part, responded to the Mitchell Report by vociferously challenging its findings and methodology. Most basically, Mr. Clemens asserted that the Mitchell Report was inaccurate in its findings as to his own use of steroids and human growth hormone. See, e.g., Roger Clemens [YouTube Video] (posted Dec. 23, 2007), Apart from the dangers posed to the major league player himself, however, his use of performance enhancing substances encourages young athletes to use those substances. Young Americans are placing themselves at risk of serious harm. Because adolescents are already subject to significant hormonal changes, the abuse of steroids and other performance enhancing substances can have more serious effects on them than they have on adults. Mitchell Report at SR-8; see also id. at 4, 15-17, SR-8 SR-9 ( hundreds of thousands of high school-aged young people are still illegally using steroids ; [e]very American, not just baseball fans, ought to be shocked into action by that disturbing truth ). 5

14 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 14 of 47 Mike Wallace, Roger Clemens Interview, CBS News; 60 Minutes (aired Jan. 6, 2008), Mr. Clemens challenge to the Mitchell Report, however, was more than a quibble with one finding of the Report. Mr. Clemens took direct aim at the credibility of one of the primary sources for the Report, Brian McNamee, thereby calling the Report into question at least insofar as it relied on Mr. McNamee. See, e.g., Gene Duffey, Clemens Reveals Taped Call with His Accuser, Austin American-Statesman (Jan. 8, 2008) (noting lawsuit by Mr. Clemens against Mr. McNamee, alleging that Mr. McNamee s statements absolutely false and defamatory ); Howard Fendrich, McNamee Arrives for Deposition; Clemens Back on Hill, Associated Press (Feb. 7, 2008) (quoting Mr. Clemens lawyer: Brian McNamee is obviously a troubled man who is obsessed with doing everything possible to destroy Roger Clemens.... McNamee lied to the police who were investigating him for sexual assault, he lied to Senator Mitchell, he lied to the federal government, and now he apparently has manufactured evidence. ). Indeed, Mr. Clemens challenged the Mitchell Report even more broadly, including by likening it to an act of McCarthyism, see Duff Wilson & Michael S. Schmidt, Clemens s Legal Team Adds Private Investigators, N.Y. Times (Dec. 27, 2007), ( Hardin also drew parallels between the Mitchell report... and the tactics used by Senator Joseph R. McCarthy more than half a century ago. ; quoting Mr. Clemens lawyer as follows: There are certain standards that must be employed to name someone. We learned 60 years ago the lasting effect that has. Didn t we have stuff 60 years ago in which allegations that someone told a Senate committee tainted people? I am very uncomfortable with that atmosphere. ), and insisting that 6

15 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 15 of 47 it rested on an inadequate investigation, see, e.g., Alyson Footer, Clemens lawyer plans own investigation: Statement comes days after pitcher issues video denial, MLB.com (Dec. 27, 2011), ext=.jsp&c_id=mlb (quoting Mr. Clemens lawyer: To our surprise, we have identified several people who logic dictates the Mitchell team should have talked to but did not. That s troubling. ; There are people to talk to that were not by the Mitchell Commission. I m increasingly surprised with the people and issues that were not looked at. ). Any doubt about the breadth of Mr. Clemens attack on the Mitchell Report is erased by the statements of Mr. Clemens lawyers during his deposition: [T]hey [Mr. Mitchell and his team] did not do any due diligence on this man [presumably, Brian McNamee] or his story. [W]e have been shocked at the things the Mitchell people haven t looked into. [T]he methodology is horrible.... [I]t is a horrible, disgraceful report. Dep. of Wm. R. Clemens, H. Comm. on Oversight & Gov t Reform, U.S. House of Representatives at 82, 85, 138 (Feb. 5, 2008) ( Clemens Deposition ). 2 2 The comments of Mr. Clemens lawyers (made, at the deposition, in front of Mr. Clemens himself) were not unauthorized, as those lawyers recently have suggested. See, e.g., Clemens Dep. at 10 ( Q.... [H]ave you been able to uncover facts or evidence that would refute what Mr. McNamee is saying? A I don t know of [sic] to get into the details. You would have to ask my two lawyers here on that. ). 7

16 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 16 of 47 As a result, the Committee, in furtherance of it broad investigatory power, undertook to determine whether the Mitchell Report in fact was accurate and credible, so that the Committee could evaluate whether the Report s recommendations merited deference. See, e.g., The Mitchell Report: The Illegal Use of Steroids in Major League Baseball, Day 2: Hr g before the H. Comm. on Oversight & Gov t Reform, 110th Cong. 2-3 (Feb. 13, 2008), ( February 13, 2008 Committee Hearing ) (Chairman Henry Waxman: Noting Mr. Clemens challenge and stating: Given the committee s past work and our interest in an accurate record of baseball s steroid era, we have investigated the evidence in Senator Mitchell s report that relates to Mr. McNamee and the players he identified.... [I]f the Mitchell Report is to be the last word on baseball s past, we believe we have a responsibility to investigate a serious claim of inaccuracy. ). If not, the Committee recognized that it might have to conduct its own independent investigation and impose its recommendations via legislation, as it had considered doing as far back as See id. In doing so, the Committee evaluated the Mitchell Report as a whole and particularly that portion evidencing significant reliance on Mr. McNamee. See, e.g., id. at 2 (Chairman Waxman: This is our second hearing on Senator Mitchell s report on the illegal use of steroids and other performance-enhancing substances by players in Major League Baseball. This hearing is focused on the accuracy of an important section of that report, the section that is based on the information strength and fitness coach Brian McNamee provided to Senator Mitchell. ). Accordingly, the Committee heard from each of the players identified by the Mitchell Report as using steroids and/or human growth hormone provided by Brian McNamee: Mr. Clemens, Andrew Pettitte, and Edward Knoblauch. See, e.g., id. at 3-7 (noting depositions or transcribed 8

17 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 17 of 47 interviews of Messrs. Clemens, Pettitte, and Knoblauch). Messrs. Pettitte and Knoblauch confirmed the Mitchell Report and Mr. McNamee s account as to their own use, see, e.g., id. (noting same), and Mr. Pettitte explained that Mr. Clemens in fact himself had admitted using human growth hormone, see, e.g., id. at 6 (noting same; During his deposition, Mr. Pettitte was asked whether he had any doubt about that recollection [that in 1999 or 2000 Mr. Clemens admitted to Mr. Pettitte that Mr. Clemens had used HGH] and he said, I mean no. He told me that. ). Ultimately, the Committee determined that the Mitchell Report and Mr. McNamee s account withstood the attack of Mr. Clemens. See, e.g., Letter from Hon. Henry Waxman, Chairman & Hon. Tom Davis, Ranking Member, H. Comm. on Oversight & Gov t Reform, to Hon. Michael Mukasey, U.S. Att y Gen. (Feb. 27, 2008) ( Referral Letter ), attached as Exhibit H (referring Mr. Clemens to Department of Justice for consideration of possible criminal charges in connection with truthfulness of Mr. Clemens statements to Committee). Accordingly, the Committee did not proceed to conduct its own investigation into Baseball s past or to advance legislation imposing conditions beyond those recommended by the Mitchell Report (all of which Major League Baseball could implement on its own, or in conjunction with the players union). See, e.g., Mitchell Report at III. Committee Involvement in Executive Branch Prosecution of Mr. Clemens. Following the bipartisan referral of Mr. Clemens to the Department of Justice, see Referral Letter, and the Department s decision to consider (and, ultimately, to prosecute) the case, the Committee voluntarily produced a substantial quantity of documents that the Committee had obtained, created, or reviewed in the course of its investigation, including: (i) Videos of the Committee s January 15, 2008 and February 13, 2008 hearings; 9

18 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 18 of 47 (ii) Transcripts of the deposition testimony of Messrs. Clemens (Feb. 5, 2008), McNamee (Feb. 7, 2008), and Pettitte (Feb. 4, 2008); (iii) Transcripts of the interview testimony of Mr. Knoblauch (Feb. 1, 2008), Melvin Thomas Craig (Feb. 4, 2008), Allan E. Gross, M.D. (Feb. 11, 2008), Rex Allen Jones (Feb. 8, 2008), David Leo LaBossiere (Feb. 8, 2008), David Lintner, M.D. (Feb. 11, 2008), Eugene Monahan (Feb. 12, 2008), James Joseph Murray (Jan. 31, 2008), Christopher J. Nitkowski (Jan. 27, 2008), Arthur Pappas, M.D. (Feb. 12, 2008), Scott Shannon (Jan. 31, 2008), and Ron Taylor, M.D. (Feb. 4, 2008); (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) Executed declarations or affidavits from Mr. Pettitte (Feb. 8, 2008), Laura Pettitte (Feb. 8, 2008), Jose Canseco (Jan. 22, 2008), and Jessica Fisher (Feb. 11, 2008); Staff counsel interview notes of the non-transcribed interviews of Mr. McNamee (Feb. 7, 2008), Mr. Canseco (Feb. 10, 2008), Ms. Fisher (Feb. 10, 2008), Mr. Craig (Mar. 19, 2008), James Clodfelter (Mar. 18, 2008), Glenn Dunn (Mar. 20, 2008), and John Brioux (Mar. 25, 2008); Transcript of the interview of Mr. McNamee by Mr. Clemens representatives (Dec. 12, 2007); Golf receipt provided to the Committee by Mr. Clemens; Certain medical records provided to the Committee by Mr. Clemens; Certain committee communications with Lawrence Yao, M.D.; Mr. Clemens 2003 Major League Baseball drug test results; Certain s provided by Mr. Murray concerning Mr. McNamee; and Certain s involving Messrs. Murray, McNamee, and Clemens. See, e.g., Certain Transmittal Letters, attached collectively as Exhibit I, including Mar. 26, 2008 Transmittal Letter at 1 ( The Department of Justice (DOJ) has requested relevant Committee materials.... To assist the Department in this investigation, I am providing.... ) & Apr. 1, 2008 Transmittal Letter at 1 (substantially identical). The documents provided include a number of documents presumably more useful to Mr. Clemens defense than to the prosecution, including (1) notes of a non-transcribed interview of 10

19 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 19 of 47 Mr. McNamee regarding an instance in which he acknowledged lying to police investigators, and (2) notes of non-transcribed interviews of several individuals whose statements arguably tend to corroborate Mr. Clemens statement that he did not attend a particular event at the home of Mr. Canseco, and a golf receipt to the same effect. Notwithstanding this very substantial production, Mr. Clemens issued, on February 10, 2011, a document subpoena to the Committee. See Mot. of [Committee] to Quash... & Mem.... in Supp. at Ex. A (Mar. 18, 2011) (ECF No. 27) (subpoena). The Committee moved to quash, noting both that (1) the Committee was absolutely privileged from the compelled production of those documents by the Speech or Debate Clause and, in any event, (2) Mr. Clemens failed to identify with the requisite specificity the documents sought and his need for those documents. See id. at The Court heard argument on the Committee s motion on April 21, 2011, see Apr. 21, 2011 Hr g Trans. (May 23, 2011) (ECF No. 49), and, at the conclusion of the argument, granted the motion to quash, see id. at 123:23-24 ( So I would grant Congress s Motion to Quash the subpoena that was issued to the Committee. ). On April 27, 2011, the Court issued a short order confirming that ruling. See Order (ECF No. 43) ( [I]t is further ORDERED that the [Committee] s motion to quash the subpoena duces tecum issued to it by the defendant on February 10, 2011, is GRANTED. It is further ORDERED that the subpoena duces tecum issued by the defendant to the [Committee] on February 10, 2011, is QUASHED. ). In explaining its grant of the Committee s motion to quash at the April 21, 2011 hearing, the Court concluded that Mr. Clemens had failed to demonstrate that exculpatory information does in fact exist and that there s no means by which that can be acquired other than from the Congress. Apr. 21, 2011 Hr g Trans. at 122:9-11; see also id. ( [T]here are ways that some of 11

20 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 20 of 47 the things that are being suggested can in fact be brought out... through other means.... ); accord id. at 123:1-7. In so ruling, the Court stopped just short of making an independent ruling that the Speech or Debate Clause also required that the Court quash Mr. Clemens February 10, 2011 subpoena. More particularly, the Court recognized that the Committee in fact and as a matter of law was pursuing legitimate legislative activity in conducting its investigation: I do conclude that there was a legitimate legislative purpose for conducting the hearings. Apr. 21, 2011 Hr g Trans. at 120:16-18; see also id. at 120:18 121:2 ( Clearly, the use of steroids is a legitimate concern that the government should have. I agree... that, obviously, Major League athletes, regardless of what they engage in as far as their athletic activity is concerned, they are people that our youth look up to. And I think it s important that, for the health and welfare of children, that the Congress be concerned about activity that already is being engaged in by sports heroes. ). As the Court further explained: Id. at 121:16 122:2. I don t think it was inappropriate or somehow a lark on the part of the Congress not consistent with its legislative agenda to request that [Mr. Clemens] come in and explain why he believed that the Mitchell Commission Report was not credible.... [T]here was, as I say, a legitimate purpose for Congress to conduct the hearing, to ask him to come in for participation in the deposition. Subsequently, the Committee made available Phil Barnett, the staff director for the majority-side of the Committee during Mr. Clemens 2008 appearances before the Committee, as a trial witness. Mr. Barnett s testimony spanned various days between Tuesday, April 24, 2012, and Wednesday, May 2, 2012 (covering more than eleven hours of trial testimony), with the time on cross-examination consuming a substantial portion if not the majority of his testimony. See Apr. 24, 2012 Trial Trans. (A.M.) (ECF No. 130) at 62:13 155:17; Apr. 30, 2012 Trial 12

21 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 21 of 47 Trans. (A.M.) (ECF No. 133) at 7:19 73:13; Apr. 30, 2012 Trial Trans. (P.M.) (ECF No. 140) at 3:8 127:4; May 1, 2012 Trial Trans. (A.M.) (ECF No. 141) at 5:10 90:3; May 2, 2012 Trial Trans. (P.M.) (ECF No. 142) at 5:11 53:13. IV. Mr. Clemens Current Subpoenas to Chairman Issa and the Committee. After all this, Mr. Clemens now seeks to compel (i) the testimony of Chairman Issa who, at the time of Mr. Clemens statements to the Committee, served on the minority side, and not as the Ranking Member, of the Committee and, notwithstanding the Court s April 2011 ruling, (ii) documents from the Committee. As to the first subpoena, Chairman Issa asked Mr. Clemens what testimony he was demanding and how that testimony could be relevant and material to this trial. See Letter from William Pittard to Michael Attanasio (May 7, 2012), attached as Exhibit J. Mr. Clemens responded only with a cryptic stating, in full: The subjects about which we wish to question Chairman Issa are: (1) the areas covered by a staffer in the government s case; and (2) public comments made by Chairman Issa concerning the relevant hearings in from Michael Attanasio to William Pittard (May 9, 2012), attached as Exhibit K. As to the second subpoena, it demands sixteen categories of documents. See Exhibit B (May 10, 2012 Subpoena to Committee). At least twelve categories demand documents bearing on the material[ity] of particular issues about which the Committee inquired. Id. at Categories 1-11, 13. The remaining categories demand documents regarding the motivation behind the Committee investigation, whether the investigation was consistent with the rules of the House of Representatives, the legislation considered in connection with the investigation, and the selection of Mr. Barnett to testify at the trial in this matter. Id. at Categories 12,

22 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 22 of 47 ARGUMENT Mr. Clemens subpoenas should be quashed. First, the Speech or Debate Clause absolute[ly] privileges Chairman Issa and the Committee from compliance where, as here, Mr. Clemens demands testimony and documents regarding conduct within the sphere of legitimate legislative activity. Eastland, 421 U.S. at 501, 503. Second, the subpoena to Chairman Issa should be quashed because he is not uniquely available to testify; indeed, Mr. Barnett already has done so. Third, the subpoena to the Committee should be quashed because the subpoena does not demand with specificity documents both relevant and admissible. And, fourth, both subpoenas should be quashed because they are untimely. I. Mr. Clemens Subpoenas Should Be Quashed Because Chairman Issa and the Committee Are Absolutely Privileged from Testifying or Disclosing Documents Where, as Here, Such Testimony and Documents Pertain to Legitimate Legislative Conduct. Mr. Clemens subpoenas should be quashed because the Speech or Debate Clause, U.S. Const. art. I, 6, cl. 1, absolute[ly] privileges Chairman Issa and the Committee from providing compelled testimony or documents in connection with conduct within the sphere of legitimate legislative activity. Eastland, 421 U.S. at 501, 503; see also Gravel, 408 U.S. at 622, 628 (holding congressional aide subject to grand jury subpoena only insofar as questions do not require testimony about or impugn a legislative act, with legislative act including any matter constituting an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other maters which the Constitution places within the jurisdiction of either House ); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 416, 419 (D.C. Cir. 1995) (quashing, on Speech or Debate grounds, subpoena seeking documents from House Members; noting that Speech or Debate 14

23 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 23 of 47 Clause protects absolute[ly] all congressional activities within the legitimate legislative sphere (quoting Eastland, 421 U.S. at 503)); MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988) (same as to subpoena to House committee). Because Mr. Clemens subpoenas seek this privileged material, they should be quashed. A. The Committee s Investigation Constituted Legitimate Legislative Conduct. As this Court already has determined (consistent with Supreme Court and D.C. Circuit authority), the Committee engaged in legitimate legislative conduct in hearing from Mr. Clemens. 1. Supreme Court and D.C. Circuit Authority Provide the Legislative Branch Wide Latitude in Adjudging Whether Congressional Conduct Constitutes Legitimate Legislative Activity, Eastland, 421 U.S. at 503. In Gravel, the Supreme Court considered to what extent a congressional aide could be compelled to testify pursuant to a grand jury subpoena. See 408 U.S. at The Court held that, upon invocation of the Speech or Debate Clause privilege, the aide could be questioned only insofar as the inquiry did not require testimony about or impugn a legislative act. Id. at 622. The Court defined [l]egislative acts to include matters constituting an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. Id. at 625. Three years later, in Eastland, the Supreme Court expanded on the circumstances in which Members of Congress, their aides, and congressional committees may invoke the Speech or Debate Clause; i.e., in what circumstances congressional conduct comes within Gravel s definition of a legislative act. See 421 U.S. at The Eastland Court considered this 15

24 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 24 of 47 question in the context of a First Amendment challenge to a congressionally-issued subpoena. See id. at The Court held: The power to investigate... plainly falls within that definition [i.e., the Gravel definition of a legislative act ]. Id. at 504; see id. ( [T]he power to investigate is inherent in the power to make laws because a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. (quotation marks and brackets omitted)). Because the subcommittee that had issued the contested subpoena had acted in pursuit of its investigation into a subject matter on which legislation could be had, id. at 504 n.15 (quoting McGrain v. Daugherty, 273 U.S. 135, 177 (1927)), the subcommittee s activity was within the sphere of legitimate legislative activity and, therefore, implicated the Speech or Debate Clause, see id. at ; see also id. at 503 ( We reaffirm that once it is determined that Members are acting within the legitimate legislative sphere the Speech or Debate Clause is an absolute bar to interference. (quoting Doe v. McMillan, 412 U.S. 306, 314 (1973))). The en banc D.C. Circuit applied Gravel and Eastland in McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc). The D.C. Circuit considered in McSurely circumstances similar to those of Eastland in that plaintiffs alleged that certain committee investigative activities violated the plaintiffs constitutional rights. See 553 F.2d at The D.C. Circuit held the congressional defendants immune under the Speech or Debate Clause insofar as the alleged conduct constituted protected legislative activity (and thus reversed in part and remanded the district court s denial of the congressional defendants motion for summary judgment). See id. at More particularly, the D.C. Circuit acknowledged that the [Supreme] Court has recognized absolute immunity for legislators... conduct at committee hearings... and issuance of subpoenas concerning a subject on which legislation could be had. Id. at

25 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 25 of 47 (quoting Eastland, 421 U.S. at )); see also id. at ( The acquisition of knowledge though informal sources is a necessary concomitant of legislative conduct and thus should be within the ambit of the privilege so that congressmen are able to discharge their constitutional duties properly. ). The en banc D.C. Circuit further emphasized that a court may not enmesh itself in reviewing the usefulness or necessity of the degree and type of details included in the illustrative material assembled by [a congressional] committee in preparation of the committee s investigative report. Id. at 1296 n.66; see also Doe, 412 U.S. at 313 ( Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to [include certain material in a committee s investigative report], we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. ). In Brown & Williamson and MINPECO, the D.C. Circuit applied these principles squarely in the context of a subpoena to a Member of Congress or congressional committee. First, in MINPECO, the D.C. Circuit affirmed a district court order quashing a subpoena duces tecum for congressional subcommittee documents. See 844 F.2d at 857. The court noted that the Speech or Debate Clause applies to document subpoenas as well as compelled in-person testimony, and applies no matter how obtrusive or unobtrusive a subpoena may be. See id. Any questioning about legislative acts... would interfere by having a chilling effect on Congressional freedom of speech. Id. at 860 (quotation marks omitted) (emphasis added). The MINPECO Court was categorical in explaining the application of the Speech or Debate Clause: Once the legislative act test is met, the principle is absolute. Id. at (quotation marks omitted); see also id. at 861 ( As the [activity] was part of the legislative process, that is the end of the matter. ). 17

26 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 26 of 47 In Brown & Williamson, the D.C. Circuit quashed a subpoena for tobacco company documents that had come into the possession of certain Members of the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce. See 62 F.3d at 412. The Court noted that the [Speech or Debate] Clause confers on Members of Congress immunity for all actions within the legislative sphere, id. at 415 (quoting Doe, 412 U.S. at ); that Eastland had held that Congress was authorized to investigate any subject on which legislation could be had, id. at 416 (quoting Eastland, 421 U.S. at 504 n.15); that the Clause protects congressional documents, as well as oral testimony, because [d]ocumentary evidence can... be as revealing as oral communications.... [and] indications as to what Congress is looking at provide clues as to what Congress is doing..., id. at 420; and that the legislative privilege is absolute where applicable, id. at 416 (quoting Eastland, 421 U.S. at 509). In affirming the district court order quashing the document subpoena at issue, the Court necessarily concluded that the Subcommittee s possession of the tobacco company documents was within the legislative sphere. Id. at See also, e.g., Pentagen Techs. Int l, Ltd. v. Comm. on Appropriations of the U.S. H.R., 20 F. Supp. 2d 41, 44 (D.D.C. 1998) (dismissing action seeking public disclosure of committee documents; [T]he law is clear that use of documents by the committee staff in the course of official business is privileged legislative activity.... Defendants [including congressional committee] thus argue persuasively that since the reports are documents that were used by the Committee in the course of its official business, the reports are protected from compulsory disclosure by the Speech or Debate Clause. (quotation marks, brackets, and ellipsis omitted)), aff d per curiam, 194 F.3d 174 (D.C. Cir. 1999); United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246, 249 (D.D.C. 1981) (granting congressional motion to quash document subpoena; Otherwise, Members of Congress conducting investigations would be forced to consider at every turn whether evidence received pursuant to the investigation would subsequently have to be produced in court. This would imperil the legislative independence protected by the [Speech or Debate] Clause. (quotation marks omitted)); United States v. Ehrlichman, 389 F. Supp. 95, (D.D.C. 1974) (Speech or Debate Clause protected House Committee from being compelled to produce transcript of its proceedings in criminal trial: Since the requested transcript would reveal the deliberative and communicative processes by which Members of Congress participate in committee and House proceedings, judicial efforts to compel production of that document would, under the present circumstances, also violate the 18

27 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 27 of This Court Correctly Applied This Precedent in Recognizing That the Committee Engaged in Legitimate Legislative Conduct in Hearing from Mr. Clemens. Application of the controlling authority, noted immediately above, to the circumstances of Mr. Clemens subpoenas requires the conclusion that the Committee investigation, including in inviting Mr. Clemens to appear and to testify, constituted conduct within the sphere of legitimate legislative activity. Eastland, 421 U.S. at 503. First, any judicial inquiry as to whether any particular aspect of a congressional inquiry falls within the sphere of legitimate legislative activity is a very narrow one. Id. at 503, 506. The courts should not go beyond the narrow confines of determining that a committee s inquiry may fairly be deemed within its province. Id. at 506 (quotation marks omitted); see also id. ( The propriety of making USSF a subject of the investigation... is a subject on which the scope of our inquiry is narrow. ). The D.C. Circuit has emphasized this deference: [T]he Speech or Debate Clause, designed to preserve the independence and integrity of the Legislative Branch, is to be read broadly to effectuate its purposes. MINPECO, 844 F.2d at 863 (quotation marks and brackets omitted). 4 Second, under any standard of review, the Committee s investigation falls well within the scope of the Committee s legitimate legislative function. Indeed, the question is not close. Speech [or] Debate Clause.... (quotation marks, brackets, and ellipsis omitted)); Mot. of [Committee] to Quash... & Mem.... in Supp. at (Mar. 18, 2011) (ECF No. 27) (citing additional authority in providing background on origin, nature, and scope of Speech or Debate Clause). 4 Expressly outside the scope of any such judicial inquiry is/are the motive(s) for the Committee s investigation. See, e.g., United States v. Johnson, 383 U.S. 169, 180 (1966) (Speech or Debate Clause forecloses from inquiry question of congressman s motives in undertaking particular legislative act); see also Eastland, 421 U.S. at ( Our cases make clear that in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.... [T]he claim of an unworthy purpose does not destroy the privilege. ). 19

28 Case 1:10-cr RBW Document 164 Filed 05/18/12 Page 28 of 47 The Committee was expressly authorized by House rules to investigate any matter at any time. Exhibit E (Rule X.4(c)(2), Rules of the 110th Congress) (emphases added). 5 The Supreme Court s unambiguous holding that [t]he power to investigate... plainly falls within that definition [of activity within the sphere of legitimate legislative activity], Eastland, 421 U.S. at 504, recognizes the common sense need for Congress to investigate the subject matter of potential legislation prior to legislating. See also Jan. 15, 2008 Committee Hr g at 2 (opening statement of Chairman Waxman: The starting point for addressing any scandal is in the facts. ). Moreover, the Committee investigation certainly bore on subject matter on which legislation could be had, Eastland, 421 U.S. at 504 n.15 (quotation marks omitted). The investigation originated in concerns about the health of American youth, see supra pp. 3-4, concerns that were amplified with the release of the Mitchell Report: Every American, not just baseball fans, ought to be shocked into action by that disturbing truth [of the abuse of performance enhancing drugs by hundreds of thousands of teenage athletes, a problem aggravated, at the least, by the abuse of performance enhancing drugs by Major League Baseball players]. Mitchell Report at SR-8 SR-9; see also id. at 4, Given the place of Major League Baseball in the cultural life of the nation, the Report also raised issues relating to education, crime, and commerce (among others). See, e.g., Reply [of Committee in Supp. of]... Mot Rule X was duly adopted by the U.S. House of Representatives pursuant to the Rulemaking Clause of the Constitution, U.S. Const. art. I, 5, cl. 2, which is a broad grant of authority, Consumers Union of the U.S., Inc. v. Periodical Correspondents Ass n, 515 F.2d 1341, 1343 (D.C. Cir. 1975), that sits [a]t the very core of our constitutional separation of powers, Walker v. Jones, 733 F.2d 923, 938 (D.C. Cir. 1984) (MacKinnon, J., concurring in part and dissenting in part). Rules promulgated pursuant to the Rulemaking Clause, within constitutional limitations, are absolute and beyond the challenge of any other body or tribunal. United States v. Ballin, 144 U.S. 1, 5 (1892); see also United States v. Smith, 286 U.S. 6, 33 (1932) (same). 20