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Clemens defense wants lawmaker to testify

In this handout photo provided by CBS News,

In this handout photo provided by CBS News, Rep. Darrell Issa (R-CA) visits 'Face the Nation' in Washington, D.C. (April 15, 2012) Photo Credit: Getty Images

WASHINGTON -- Just days after the House Oversight and Government Reform Committee held the 2008 hearing that led to the perjury trial of Roger Clemens, Rep. Darrell Issa told a reporter, "This was all about entrapping Roger Clemens."

Clemens' attorney, Rusty Hardin, now wants to bring up in court that and six other critical statements made to reporters in 2008 by Issa, a San Diego Republican who has since become chairman of the committee.

Hardin has attacked the legitimacy of the hearing that featured Clemens' denials of steroid use from the start, saying in his opening statement: "Congress knew he was going to deny it. They call him up anyway."

Hardin wants to bring in Issa to back up his attack.

Issa's lawyer argues that the Constitution protects Issa as a member of Congress from being forced to testify about legislative matters. Prosecutors say Issa's 2008 statements to reporters are merely "hearsay," as words quoted in news stories.

U.S. District Judge Reggie Walton said he will rule Monday on that and other defense motions, including one seeking the committee's internal documents and another to allow the estranged wife of Brian McNamee, Clemens' former trainer, to testify against McNamee.

Issa remains a critic of the Feb. 13, 2008, hearing that pitted Clemens against McNamee, who said he injected the former Yankee pitcher with steroids and HGH. Clemens denied the allegation.

Members of the committee split largely along partisan lines: most Democrats said they believed McNamee's version of events, but most Republicans sided with Clemens.

In interviews with reporters in 2008, Issa questioned whether the hearing was an "abuse" of congressional power and even compared it with former Sen. Joe McCarthy's anti-communist hunt in the 1950s.

Two weeks after the hearing, then-committee Chairman Rep. Henry Waxman (D-Calif.) and the panel's top Republican referred the issue to the Justice Department for investigation.

In 2010, a federal grand jury handed up a six-count indictment of Clemens for obstructing and lying to Congress by denying steroid and HGH use.

In the May 2 subpoena, Clemens' defense seeks to question Issa to contradict former top committee staffer Phil Barnett's defense of the hearing's legitimacy.

Issa's lawyers argued in a filing that the defense subpoena was filed too late, and that Issa's statements to reporters are not relevant. At most, his lawyers said, Issa could testify he made the statements, but that Hardin could not probe them "without running afoul of the Speech or Debate clause" -- the constitutional protection for members of Congress.

Prosecution lawyers said the 2008 newspaper stories, if admitted, could create unfair prejudice, mislead the jury and cause undue delay.

Hardin responded that the constitutional Due Process clause trumps the Speech or Debate clause. "Chairman Issa's trial testimony" on the hearing's legislative purpose "is essential to Mr. Clemens' defense," Hardin said in a filing.

Walton said he is concerned that if he rules Issa must testify, Congress might appeal, which would delay the trial, already running longer than the anticipated four to six weeks.

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