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THE DARK SIDE: I love ‘not guilty’ verdicts

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.


  1. I understand that your eyes, like mine, likely are getting old, but you appear to have missed these two little nuggets within Article I of the U.S. Constitution:

    “The Congress shall have power . . . to regulate commerce . . . among the several states . . . [and] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

    The commerce part is right there between the power to borrow money and the power to regulate naturalization. I understand why you might have had a hard time finding it. It usually is in pretty small type.

    On the other hand, despite your misplaced political commentary, and despite your obvious inability to tell the truth from fiction (a flaw apparently shared by many right-wingers according to recent polls showing that most Republicans still believe myths like Iran had WMDs at the time of our invasion and that the President was not born in the U.S.), your basic points that (1) not guilty verdicts generally are good and (2) perjury should require proof of the tribunal’s jurisdiction, are valid. Of course, your views on those valid points would carry much more weight if not subsumed by frivolous right-wing rants.

  2. My bad . . . the polls actually show that most Republicans believe the myth that IRAQ had WMDs in 2003. Sorry for the typo.

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