In a courtroom blocks from Capitol Hill, a parade of Washingtonians called to jury duty last week pondered a question for a cynical age.
Is it really a crime to lie to Congress if Congress is doing something silly at the time?
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The men and women were potential jurors in the retrial of legendary baseball pitcher Roger Clemens, who is charged with lying when he denied using performance-enhancing drugs before a House committee in 2008.
“I just assume there are other things we could be doing,” said one, who said he works in computer systems for Fannie Mae and follows Notre Dame football.
Another, who said he worked as a bioengineer, called the proceedings “excessive.”
“I thought Congress would have more important matters that pertained to more people than focusing their efforts on those hearings,” he said.
Clemens’s defense team and government lawyers spent four days last week picking a jury, and that work will continue Monday before opening statements are set to begin in the District’s federal court.
As the prospective jurors submitted to question after question about Clemens and Congress, the courtroom became a kind of impromptu focus group on the legislative body that defines and bewilders their city. Many wondered why Congress was spending its time investigating a game and the things in one player’s bloodstream.
“Strange use of Congress’s time,” said one prospective juror, an art historian at the Smithsonian Institution. Another, from an environmental nonprofit group, said it wasn’t “a great use of taxpayer money.”
“There are a thousand other things that hurt kids more than performance-enhancing drugs,” the Notre Dame fan said. Jurors were identified not by name but by a court-assigned number.
This question of whether Congress was wasting its time will have crucial legal value in this case. Prosecutors from the District’s U.S. Attorney’s Office not only must prove that Clemens lied to the House panel — but also that his alleged lies were “material” to congressional action.
Prosecutors suggested to potential jurors that the hearings were material to Congress’s concerns that children might be influenced by the conduct of professional athletes.
The pitcher’s defense team will probably argue that they weren’t. Clemens’s first trial was halted quickly because of a prosecutor’s error, but it lasted long enough for Clemens’s lawyers to start sketching out a “What was Congress thinking?” defense.
“What legitimate investigative purpose is served by asking a private citizen if they ever used a controlled substance?” Clemens’s lead lawyer, Rusty Hardin, asked former House parliamentarian Charles W. Johnson, who had been called as a witness on the legislature’s ways during his first trial last year.
This time around, the job of discrediting Congress may have gotten easier. The gridlocked, divided body has slipped to historic lows in popularity: The latest Washington Post/ABC News poll showed only 13 percent of Americans approved of its job performance.
“One of the hurdles the government has to overcome is answering, ‘Why the heck are we involved in this type of investigation?’ ” U.S. District Judge Reggie B. Walton said last week, out of earshot of the potential jurors.
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