Last year, US District Judge Reggie Walton allowed the lawyers of Roger Clemens issue subpoena to third parties. The defense requested pertinent documents from the congressional committee that investigated baseball due to allegations that several baseball players were using performance enhancing drugs. Another subpoena was also issued to a private firm tasked by the MLB to investigate the matter. It was headed by Senator George Mitchell through his law firm DLA Piper.

Roger Clemens, who is facing steroid perjury charges, failed to get a favorable decision in the latest hearing on the case. The Congress and the law firm both objected in releasing important documents, memos and transcripts that were obtained during their investigation. Judge Reggie Walton favored the motion of the House Committee on Oversight and Government Reform to quash the subpoena. The judge said the documents were exempted from disclosure because it is covered by the speech and debate clause of the Constitution and the investigation is a legitimate action of the Congress in aid of legislation. “There was a legitimate purpose for conducting hearings. The use of steroids is a legitimate concern given Major League athletes are people our youth look up to,” the judge said.

On the other hand, the law firm may be forced to give at least 20 documents to the defense if Judge Walton deemed it necessary. DLA Piper argued that the subpoenaed documents are covered by lawyer-client privilege. However, Judge Walton ruled that the firm should give him the documents first to determine if these are protected by confidentiality rules. He contends that during the investigation, representatives from the prosecution and federal agents were also present.

The defense is asking them to provide interview summaries, notes, memos, and all communications made to at least 20 people who were asked to testify during the investigation especially the testimony of Brian McNamee. During the hearing, the defense called McNamee a liar and accused the trainer of making conflicting testimonies to the investigators. This is one of the reasons why the defense requested the documents from Congress and DLA Piper.

Rusty Hardin, the lead lawyer for Clemens, told the court that prosecutors, IRS and FBI agents did not took a single note during the interviews conducted in 2007. “The only record that exists is what DLA Piper had. None of the pens and pencil of the federal government make a note,” he said. “These documents have become critical to our defense,” the lawyer added.

The defense wants to discredit the credibility of Brian McNamee as a key witness of the prosecution. It was McNamee who told the investigators that Roger Clemens used anabolic steroids and human growth hormones. The trainer alleged that he injected Clemens several times in 1998, 2000 and 2001. He also provided the prosecution evidences of Clemens’ steroid use like used syringes and bloody gauze pads.

But for the defense, McNamee’s story keeps on changing from the time the investigation started like his claims that he kept physical evidences of Clemens’ doping. “If Mr. McNamee’s mouth is moving, he’s making an inconsistent statement.” said Hardin. “There’s congenital liar syndrome. We will contend that he [McNamee] is still lying to these prosecutors even today,” Clemens’ lawyer told the court.

Richard Emery, the lawyer of McNamee, did not make comment on the substance of the arguments of the defense. Instead he told the media that those statements could be a violation of the gag order issued by the judge. “Rusty Hardin is artful in using the courtroom to violate the spirit of the judge’s gag order by attempting to prejudice potential jurors with false information. I will not participate in that subterfuge,” said Emery.

The trial is scheduled on July 6. Roger Clemens is facing one count of obstruction of Congress, three counts of making false statements and two counts of perjury. Clemens denied that he ever used steroids or HGH.

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