Government Roid Rage Returns

Basically, it means he’s accused of making false statements while testifying at a congressional committee hearing. The indictment explains,

In or about March 2005, the Committee held a hearing in Washington, DC, titled “Restoring Faith in America’s Pastime: Evaluating Major League Baseball’s Efforts to Eradicate Steroid Use.” One purpose of this hearing was to investigate the use of [performance-enhancing drugs] in professional baseball as part of Congress’s authority to regulate commerce and evaluate the nation’s drug laws.

Now Clemens did not testify at this hearing, mind you. He appeared — voluntarily and without subpoena, according to the indictment — before Congress at a follow-up hearing in 2008 to address allegations that he had used various substances without the government’s consent. The indictment justifies this hearing as follows:

[The House Committee on Oversight and Government Reform] possessed the authority to investigate, among other matters, the use and distribution of controlled substances and other drugs, including anabolic steroids and HGH, in MLB and elsewhere. The Committee’s investigation was conducted pursuant to its authority, consistent with applicable rules of the House. Based on its investigation, the House had authority to pass legislation protecting public health, including legislation governing the use and distribution of controlled substances and other drugs. The House also had the authority to pass legislation governing the regulation of MLB in interstate and foreign commerce, including legislation protecting the integrity of the game of MLB.

By allegedly lying to the committee about his personal use of certain substances, the indictment argues that Clemens “did corruptly endeavor to influence, obstruct, and impede the due and proper exercise of the power of inquiry under which an investigation was being had by a Committee of the United States House of Representatives.”

The basic idea here is that we should consider it a crime — a felony, no less — for an individual to prevent a congressional committee from discovering the truth about a subject, whether or not the subject is really a proper subject of congressional authority. Although akin to the “obstruction of justice” charge, the “obstruction of Congress” charge really elevates the people’s elected representatives above the people themselves, as they are slaves to the mob-driven whims of the Congress and its tyrannical committee chairs.

Let’s take this one step at a time, starting with the shifting justifications for the congressional hearings. Although the indictment describes the 2005 hearing as pursuant to Congress’s power to regulate interstate commerce, the title of the hearing suggests otherwise. “Restoring Faith in America’s Pastime” has nothing to do with commerce; “faith” is a religious belief. No matter how broadly you read the commerce clause, it does not extend to individual’s faith or belief in a game.

Now, obviously, these hearings were about drugs, not faith. Congress has the right to regulate drugs, ergo it can hold hearings about their use. Except for the fact that absolutely nothing in the Constitution allows Congress to ban individuals from possessing substances, be they steroids or cheese, that makes total sense. Furthermore, while the indictment speaks of Congress’s “authority to pass legislation protecting public health,” the Constitution makes no such provision. To the contrary, “public health” regulation is a police power reserved to the states under the Tenth Amendment. And unless it’s one of those “privileges and immunities” covered by the 14th Amendment, Congress also has no authority to “protect the integrity of the game” of baseball.

But let’s side aside Congress’s lack of jurisdiction for a moment. Assuming Congress can regulate and ban steroids and other substances — including vitamins — that still does not establish a causal link between Clemens’s testimony and the attainment of any congressional objective. Remember, we’re not talking about perjury here. Clemens was separately charged with that. This charge is “obstruction of Congress.” People lie to Congress every day (especially people who work for the government), yet Clemens is one of the only people ever charged with this offense. The grand jury claims Clemens prevented the “due and proper exercise of the power of inquiry.” Where does this power come from and how does it apply to whether Clemens stuck a syringe filled with vitamin B-12 in his behind?

Congress certainly has the power to legislate. Indeed, it has exclusive legislative power in the federal system, despite Congress’s nasty habit of handing out that power to unelected regulatory agencies like it was an evil witch luring children into a gingerbread house. Each house of Congress also has the power to “determine the Rules of its own Proceedings.” Indeed, the indictment cites one of the House’s rules, Rule X, which allows the Committee on Oversight and Government Reform “to investigate subjects within the Committee’s legislative jurisdiction as well as any matter within the jurisdiction of the other standing House committees.” Curiously, Rule X lists a number of specific subjects committed to the Government Reform and Oversight Committee, none of which have anything to do with Major League Baseball, drug use, or Roger Clemens. Which makes sense given the committee is called the “Committee on Government Reform and Oversight,” and not the “Committee on Major League Baseball, Steroids, and Roger Clemens.”

Now, as the indictment referred to, there is another provision of Rule X that allows the Government Reform and Oversight Committee to “at any time conduct investigations into any manner without regard to…[other clauses] conferring jurisdiction over the matter to another standing committee.” So, assuming some House committee has jurisdiction over Major League Baseball, steroids, and Roger Clemens, the Government Reform and Oversight Committee is allowed to simply usurp that jurisdiction for itself. So we’re talking about a super-committee that can do whatever it wants.

All that said, it doesn’t matter how the House chooses to organize itself or divide powers among committees. What matters is that these are internal procedures that only bind members of the House. The constitutional power to make internal rules cannot bind outsiders in any way, shape, or form. The House certainly cannot use internal rules to conduct random investigations of individuals outside of the government. (The House can investigate government employees, of course, as part of its oversight and impeachment functions.)

Even if we concede the Government Reform and Oversight Committee’s authority to conduct hearings into steroid use in Major League Baseball, the committee cannot conduct investigations of individual players under the pretense of legislative activities. At best, it’s a law enforcement issue for the executive and judicial branches.

More to the point, there is simply no legislative relevance to Clemens’s private use (or non-use) of any substances. Clemens is just one of thousands of Major League players. Even if there was widespread drug use that is now properly the subject of congressional intervention, it doesn’t matter whether one specific player used drugs or not. What matters is the aggregate statistics on such drug use. Congress had ready access to that information. The Government Reform and Oversight Committee went a step further, however, and tried to use that information to embarrass and disgrace individual players. That’s not legislating. It actually comes perilously close to a Bill of Attainder, which is expressly forbidden in the Constitution.

The point is that even if Clemens gave false answers to every single question he was asked, there’s no possible way it could have obstructed or impeded any valid legislative information-gathering activities. The only reason Congress asked the questions was to humiliate Clemens. It’s a fairly obvious abuse of government power.

Of course, some conservative types will hide behind the mantra, “He broke the law, and the rule of law must be upheld.” Fair enough. But if Congress doesn’t have to follow the law — i.e., the Constitution — then why does Roger Clemens?

And while many in the press and the public will cheer for Clemens getting what is perceived as his just deserts for being a “bad guy” as a player, these would-be stoners need to consider the implications of the arguments made here. Is punishing Roger Clemens so important that it requires turning a blind eye to a congressional committee’s claim to investigate an individual’s personal actions wherever they occur?