Houston-based criminal defense lawyer Russell Hardin Jr. warned a federal judge in Washington in December that the congressional committee and law firm that investigated drug use in Major League Baseball were not likely to turn over documents to Roger Clemens without a fight.

He was right. Hardin’s now back in court, complaining that the House of Representatives oversight committee and DLA Piper are unfairly keeping documents secret that may prove helpful to Clemens in defending against charges of perjury and obstruction. Judge Reggie Walton of U.S. District Court for the District of Columbia will hear from the lawyers at a hearing April 21.

The defense attorneys said this month in court papers that the House and DLA Piper, which investigated steroid use at the request of baseball’s commissioner, have erected roadblocks that threaten to undermine Clemens’ right to a fair proceeding.

The dispute has thrust the committee and DLA Piper into the middle of a criminal prosecution, testing the scope of Congress’ power to hold onto documents and a law firm’s ability to protect internal memos from disclosure. Clemens’ attorneys said Congress is too broadly seeking to expand its independence.

House attorneys, led by General Counsel Kerry Kircher, cite the constitutional privilege against the forced release of documents created in a congressional investigation. DLA Piper attorneys turned to the attorney work-product doctrine to justify holding onto interview notes prepared during the baseball probe, performed under the direction of former DLA Chairman George Mitchell, the one-time Senate majority leader.

In cases where the government has coordinated with a private firm to conduct an investigation, the Clemens prosecution could provide a blueprint for criminal defendants about what’s available and what’s not for trial. “When those investigations lead to criminal cases, defendants quite naturally want access to the firm’s files, especially if they think it may contain exculpatory information,” said Nixon Peabody partner Kelly Kramer, who practices in government investigations and white-collar defense. “The ruling in the Clemens case will help bring some clarity around whether or when a defendant can access the private firm’s files.”

Lawyers for Clemens, who was indicted in August 2010 on charges that he lied about his alleged use of performance-enhancing drugs, served subpoenas on DLA Piper and the House in February. The defense attorneys are exploring possible inconsistent statements among government witnesses. The defense lawyers told DLA Piper to produce interview summaries, notes and memos related to three people: former slugger Jose Canseco, Clemens’ trainer Brian McNamee and Kirk Radomski, a former Mets employee who pleaded guilty in 2007 to money laundering and steroids distribution. McNamee is a lead government witness.

Clemens’ defense attorneys declined to talk about the dispute, citing Walton’s early admonition against speaking publicly about the prosecution.


In court papers filed this month, the defense lawyers chided DLA Piper, saying the firm was an independent investigator, with no client, that trumpeted its autonomy. DLA Piper, Clemens’ lawyers said, should have nothing to hide after the firm’s publication of a 409-page report in December 2007 that named dozens of players — including Clemens — as suspected steroid or performance-enhancing drug users.

“Yet now, when one of those players is being prosecuted for contradicting under oath DLA Piper’s findings and, by implication, the accuracy of the report, the authors of the report want to conceal information about critical witnesses based on the ‘attorney work product doctrine,’ ” said Hardin, who represents Clemens with Cooley partner Michael Attanasio. “ This case may be about a baseball player, but that is no reason for DLA Piper to treat it like a game.”

Hardin said the law firm did not create the documents in anticipation of litigation and said there was no legal adversary. Clemens’ attorneys also said DLA Piper waived any work-product protection when the firm shared information with federal investigators and prosecutors.

The U.S. Attorney’s Office for the Dis­trict of Columbia declined to comment. In an April 15 filing, the government took no position on the House’s assertion of the speech or debate privilege, saying it has “no authority to speak for or bind” Congress. The prosecutors did say that Clemens’ due process rights will not be unduly harmed if Walton sides with Congress in quashing the subpoena.

Assistant U.S. Attorney Steven Durham, chief of the fraud and public corruption section, said at the December hearing in Washington that prosecutors met at length with DLA Piper partner Charles Scheeler, the lead investigator under Mitchell, to express the government’s concern that the firm turn over anything that “could be remotely construed” as favorable information or impeachable evidence. The government, Durham said, asked DLA Piper to “make a very, very careful review of their own files and that they make that available to us so we can in turn make it available to the defense.”

In a motion to quash the Clemens subpoena, DLA Piper asked Walton for permission to withhold eight sets of handwritten and typed notes taken during witness interviews and telephone conversations. Among the documents: Scheeler’s handwritten notes of the July 2007 interview of McNamee and Scheeler’s handwritten notes of a June 2006 telephone conversation with Canseco.

“The internal documents summarizing interviews that are at issue here are classic attorney work product,” DLA Piper partner David Clarke Jr., who is representing the firm in the subpoena dispute, said in court papers filed in March. (Clarke, who practices in corporate and securities law litigation, declined an interview request.)

DLA Piper lawyers said Major League Baseball and the firm anticipated litigation in connection with Mitchell’s report. Disclosure of a baseball player’s alleged use of steroids or performance-enhancing drugs might trigger defamation claims, Clarke said. DLA Piper lawyers also said the interview memos and notes are “opinion” work product and “enjoy virtually absolute protection from discovery.”

Arthur Burger, who leads the professional responsibility practice at Washing­ton’s Jackson & Campbell, said the application of the work-product doctrine in the Clemens case is “pretty far afield from the classic situation it was designed for” — a dispute between two parties in civil litigation. DLA Piper, Burger said, drawing an analogy between two opposing sports teams, is “not on the field.”

“It’s the United States government versus Roger Clemens,” he said. “What’s the interest DLA Piper is seeking to protect?”


Several lawyers following the Clemens prosecution said the defense will likely have a harder time squeezing documents from Congress than from DLA Piper. The speech or debate clause in the Constitution shields lawmakers from questions about legislative activity, generally blocking outside intrusion on Capitol Hill affairs.

The House documents that Clemens’ lawyers want — including interview summaries, notes and memos — are “self-evidently” integral to a committee investigation, Kircher and House attorneys John Filamor and William Pittard said in a motion to quash filed on March 18. The committee’s investigation of the accuracy of Mitchell’s report, the House attorneys said, “falls well within the scope of the committee’s legitimate legislative functions. Indeed, this is not even remotely a close question.” Kircher’s team said Clemens issued a “broad and unfocused” subpoena. “Vague and inchoate hopes of this nature are an insufficient foundation for the present subpoena, and effectively define the subpoena for what it is — a fishing expedition,” the House lawyers said.

The House lawyers said Clemens’ status as a criminal defendant does not affect the application of the privilege. The documents the committee provided to the Justice Department, the lawyers said, have been provided to Clemens’ defense team.

Hardin and Attanasio said the House position marks an “unprecedented and expansive” reading of the speech or debate clause. Clemens, his lawyers said, has no intention to attack legislators or any legislative activity.

“The Speech or Debate Clause has finite limits and does not confer an absolute privilege on Congress to withhold information from a criminal proceeding,” Clemens’ attorneys argued. “The primary purpose of the clause is to preclude civil or criminal suits that seek to hold legislators liable for legislative activities.”

Stanley Brand of Washington’s Brand Law Group questioned whether the House committee gave up protection when it pitched Clemens to the Justice Department.

“You can’t refer a person for prosecution and then claim they can’t have the documents,” said Brand, who practices in government investigations. Turning a case over for criminal investigation, Brand continued, “is putting the value of prosecuting a recalcitrant witness above Congress’ interest in shielding what it can.”

Mike Scarcella can be contacted at mscarcella@alm.com.