THE DARK SIDE: I love ‘not guilty’ verdicts

Listen to this article

I recently spent a little downtime scouring Article I of the U.S. Constitution. What I was looking for was the provision saying that Congress has authority to hold investigations into steroid use by baseball players.

I must be losing my edge because, for the life of me, I just couldn’t find it.

And yet, surely, it must be there. After all, the Department of Justice just spent five years and millions of my tax dollars successfully persecuting, but unsuccessfully prosecuting, baseball player Roger Clemens for lying to Congress about not using steroids.

Ergo, there must be some provision in Article I that gives Congress the authority to hold the hearings in the first place. Otherwise, the whole persecution would have been void ab initio.

Unfortunately, that’s not how it works when you live in a country like the United States, which no longer has an effective constitution to restrict government tyranny.

Anyway, finding nothing in Article I to authorize the hearings, I turned to the pattern jury instructions for the 7th Circuit. Even though Clemens wasn’t prosecuted in the 7th Circuit, those are the ones I’m familiar with and I‘m just assuming they are the same.

I found the following anomaly: In order to convict a defendant of making a false statement to Congress, the fourth element is the statement was made in a matter within the jurisdiction of Congress.

However, no similar element exists for perjury, one of the other charges Clemens faced.

I would like to believe that Clemens was acquitted because the jury concluded that steroid use in baseball is simply not within Congress’ jurisdiction.

I would be deluding myself, though. After all, if the jury was convinced that Clemens lied to Congress, but that Congress had no authority to hold the hearings, it still would have found Clemens guilty of perjury, even though it would have acquitted him of making a false statement.

Furthermore, there was no real evidence to prove Clemens had taken steroids, and thus, no evidence that he lied when he said he had not.

Accordingly, it must be that the jury instead found that the government failed to prove Clemens made a false statement.

In any event, it seems to me that the jury instructions should be the same. Either both should require the tribunal that was lied to has jurisdiction in the first place, or neither should.

After giving the matter serious consideration, I think it should be both. Just think of the fun we could have as attorneys.

Suppose, for example, that an economist lies to Congress by saying that raising the minimum wage will not increase unemployment. It’s obviously a lie. But when charged with perjury for the statement, we could challenge the indictment on the ground that since nothing in Article I authorizes Congress to establish a minimum wage, Congress had no authority to hold the hearing in the first place.

A liar could testify to Congress that more federal money for public schools will improve education. And then we, as his attorneys, could defend the perjury charge by simply proving that all federal money for education is patently unconstitutional. Because Congress lacks any authority to appropriate even one cent for education, our perjurer would be entitled to dismissal, even though he knowingly lied about the relationship between federal money and educational outcomes.

If we could do that, practicing law would be even more fun than playing baseball.