Wednesday, March 09, 2005
ESPN reports that Major League Baseball ("MLB") is outraged that Congress would subpoena baseball players - seriously they actually feel justified in being outraged. Here is how ESPN describes/quotes the lawyer for the MLB:

Stanley Brand, a lawyer for the baseball commissioner's office, said the committee had no jurisdiction and was interfering with the federal grand jury by trying to force testimony from Giambi and others. He said the committee wanted to violate baseball's first amendment privacy rights and was attempting to "satisfy their prurient interest into who may and may not have engaged in this activity."

"The audacity, the legal audacity of subpoenaing someone who's been a grand jury witness before there's been a trial in the case in California is just an absolutely excessive and unprecedented misuse of congressional power," Brand said.

"Not even the Iran-contra committee attempted to do that, and when it did, it tainted irreparably the prosecutions that came out of that investigation. Now if that's what Congress wants to do to advance what it says is the public interest in combating a very serious problem that baseball has confronted, then in my judgment they've torn loose from their legislative moorings and they're marauding in an area of the law that has very serious consequences for the judicial system."

First off, this guy is a lawyer? Seriously? Apparently he must have been sick the day they taught law in law school. Since when did baseball have First Amendment privacy rights? Especially in regard to criminal activities (steroid use). Oh, and the House Government Reform Committee does have jurisdiction over the nation's drug policy (at least according to the Committee). And I am fairly sure that Congress can pretty much subpoena whoever they want, for any reason they want. If I am wrong about that - then I suggest the MLB and players try to quash the subpoena. I am sure that won't look like they are hiding something though...

This reaction is so far overblown it leads me to believe the steroid problem is much more prevalent than anyone thought. And it also leads me to believe that if this Committee is persistent they might just find out that the MLB had actual knowledge about steroid use and either condoned it or turned a blind eye to it in order to keep their ratings up. I hope the Committee issued a document preservation order to MLB.

Update: First off, it appears Stanley Brand is a real lawyer, but in my opinion that just makes what he said worse. There is zealously representing a client, and there is flat out deceiving the public. Brand came close to - if not crossed - the line to the latter.

Congress's subpoena power is not absolute, that is true. But the U.S. Supreme Court has stated:
This Court has often noted that the power to investigate is inherent in the power to make laws because "[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change." n15 . . . Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate.
In note 15 the Court states:
n15 Although the power to investigate is necessarily broad it is not unlimited. Its boundaries are defined by its source. Watkins v. United States, 354 U.S. 178, 197 (1957). Thus, "[t]he scope of the power of inquiry... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution."
Eastland v. United States Servicemens' Fund, 421 U.S. 491, 504 (1975) (citations omitted). Clearly here Congress has the power - or potential power - to enact laws relating to MLB. A couple examples would be legislation to remove MLB's baseball exemption, or under the commerce clause there is a whole multitude of different laws they could enact. They could pass a law imposing more stringent steroid testing, or they could pass a law that creates a body to monitor the current testing.
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I am an attorney in Chicago. Politically speaking, I am an indepedent that tends to lean conservative on fiscal issues and progressive on social issues. I try to remain as unbiased and open-minded as possible. Please email or post any comments, and especially criticisms. If something I say is wrong, or you disagree - let me know about it!

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