WASHINGTON Lawyers for Roger Clemens, on trial on charges he lied to Congress, plan to argue that U.S. lawmakers overreached when they called the former pitching ace to testify about steroids in Major League Baseball.
A day before opening arguments, prosecutors and defense lawyers squabbled on Tuesday over whether Congress had the authority to probe the use of performance-enhancing drugs and to interview Clemens and his accuser, former trainer Brian McNamee.
Prosecutors will try to prove that Clemens took steroids and human growth hormones and then lied to Congress and obstructed its investigation into drug use in baseball.
Clemens has denied taking the drugs or lying about it.
Hearings by the House of Representatives Oversight and Government Reform Committee in February 2008 followed an independent report released by Major League Baseball in which McNamee and others accused Clemens of using both substances from 1998 to 2001.
One of Clemens' lawyers said the hearing with Clemens and McNamee testifying was beyond Congress' purview because there was no pending, future or past legislation being discussed.
"We will be able to prove that that ship had sailed. ... Now it became a question of Mr. Clemens versus Mr. McNamee," said the pitcher's lawyer Michael Attanasio.
McNamee is expected to be prosecutors' star witness and testify about injecting the pitcher with steroids and human growth hormones repeatedly. Clemens' legal team has tried to paint McNamee as a serial liar.
Clemens' lawyers plan to call as their first witnesses the former House parliamentarian and a former House staff member.
Prosecutors countered that the investigation by the House panel was appropriate.
"It does much broader things than just legislation, it does oversight of many things," said prosecutor Daniel Butler.
Judge Reggie Walton, too, cast doubt on such a defense, saying that "It seems to me that Congress would have the authority to try to assess which view is correct."
However, Walton deferred any decision on whether to permit the defense or to limit questioning of witnesses about it.
JUDGE WARNS CLEMENS TEAM
The judge, prosecutors and defense lawyers finalized a jury on Tuesday to hear the case after spending four days interviewing potential candidates. They selected 10 women and 2 men, plus four alternates, two men and two women.
Separately, Walton cautioned Clemens' lawyers over allegations that members of his family had disparaged possible witnesses on blogs and via the social media site Twitter.
The New York Daily News reported on postings about the case, which included criticism of McNamee.
"I raise this because it's been brought to my attention that members of Mr. Clemens' family are disseminating information on the Internet ... disparaging certain people who are going to testify in this case," Walton said.
Clemens' lead attorney, Rusty Hardin, said he was not aware of any remarks by the pitcher's family.
"I have not seen it," Hardin said, adding that none of the relatives were expected to be involved in the trial. "It has been extremely difficult for Mr. Clemens and his family to put up with some of the stuff that's been put out by bloggers and others."
Walton has issued a gag order in the case but that does not extend to anyone who is not a possible witness, defendant or lawyer. In April he admonished Clemens and McNamee to adhere to it after giving interviews.
"I would assume and hope that nobody associated with this case has played a role in that information being disseminated," said Walton.
(Editing by Philip Barbara)