Friday, February 15, 2008

Should Lawyers Learn to Speak Less, and Other Random Thoughts On the Clemens-McNamee Showdown

I promise this is my last post on the face-off between Roger Clemens and Brian McNamee before the House Oversight and Government Affairs Committee . . . until my next one, of course.  Here are some random thoughts about the lawyers involved before I move on from the farce on Capitol Hill:

  • One thing that struck me throughout the whole build-up to the hearing, during in which Clemens visited a number of Committee members in their offices, was that one of his attorneys, Rusty Hardin, seemed to say things that only focused more attention on his client's alleged use of performance-enhancing drugs without putting the situation in the best light.  I understand the whole sports analogy that "the best defense is a good offense," but I've also thought that sometimes the lawyer needs to keep a case out of the news if the glare of the cameras is not going to do the client much good.  Hardin's comments about the potential presence of IRS Special Agent Jeff Novitzky, the scourge of Barry Bonds and other athletes who testified before the Balco grand jury, certainly did not serve his client well.  Novitzky attended the hearing, and upon learning that he would be there, Hardin stated in an interview, "I can tell you this: If [Novitzky] ever messes with Roger, Roger will eat his lunch."  I generally make it a policy not to make negative comments about people who carry a gun for a living, and launching a broadside at a federal agent who can investigate Clemens is not necessarily in the client's best interest.  Hardin's comment even drew a rebuke from Oversight Committee Chairman Henry Waxman, whose letter (here) issued on a Sunday states, "If today's quotation is accurate, however, it goes beyond any personal enmity that exists between Roger Clemens and Mr. McNamee. I do not know your intent in making this statement, but under one interpretation it can be seen an attempt to intimidate a federal law enforcement official in the performance of his official duties."  Not the best way to impress the Committee chairman. 
  • Not to be outdone, McNamee's lawyer, Richard Emery, launched his own attack after the hearing, claiming that the harsh questioning was a Republican plot because of Clemens' friendship with the Bush family, and even claimed that the President was likely to pardon Clemens, much like he commuted the sentence of I. Lewis (Scooter) Libby after his conviction on perjury and obstruction of justice charges.  [Trivial point: Libby's sentence was commuted, and he did not receive a pardon, at least not yet.  There is nothing to commute for Clemens at this point.]  An AP story (here) quotes Emery as stating, ""It would be the easiest thing in the world for George W. Bush, given the corrupt proclivities of his administration, to say Roger Clemens is an American hero, Roger Clemens helped children . . . It's my belief they have some reason to believe they can get a pardon."  I guess the President could issue a pardon in advance of any criminal charges being filed against Clemens, but that has not been done since the Nixon pardon, and seems a bit far-fetched at this point.  Does it boost McNamee's credibility, damaged as it was at the hearing, for his attorney to claim there is a conspiracy to protect Clemens that somehow involves the President? 
  • One point cited by Emery as supporting his pardon theory was Clemens testified that he spoke with the first President Bush shortly after the Mitchell Report came out.  That disclosure came in one of the more rambling non-sequiturs in Clemens' testimony, which can be found starting on page 141 of the hearing transcript (here).  In response to a question from Representative John Duncan, Jr. (R-Tenn.) about why he didn't speak with Senator Mitchell during the major league baseball investigation, Clemens said that no one told him about it, and then discussed how easy he is to find, including the following:

When all this happened, the former President of the United States found me in a deer blind in south Texas and expressed his concerns, that this was unbelievable, and to stay strong and keep your -- hold your head up high. These people found me.

All due respect to Senator Mitchell, I am on the same subject with him and steroids and baseball. But Bud Selig, that league, Bud Selig could have found me. If he knew that within days what this man said was going to destroy my name, he could have found me.

I am an easy person to find. I am an easy person to find in the public.

Got that?  No, I can't really follow the logic myself.  Senator Mitchell's investigation was widely known, especially in baseball circles, and the fact that former President Bush could find Clemens in a duck blind does not really answer the question, but then that didn't seem to be the Rocket's intention as he meandered through his time on the U.S. Olympic baseball team and other extraneous matters.  Very odd.

I won't inflict this on you again, at least not until there's something new and interesting to talk about. (ph)

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No, no, Peter - you misunderstand. Not a "duck blind" (those are for vice presidents); it was a "deer blind." I hope that makes the whole thing more clear. By the way, if you're in a blind (of whatever species) and "hold your head up," doesn't that kind of defeat the purpose? That's the part that confused me. Or could he have misspoken? Perhaps he was "in a bind," not a "blind." Or maybe this is just a case of the blind leading the blind.

Posted by: Peter G | Feb 15, 2008 3:08:02 PM

Peter G:

Deer, duck, same thing down in Texas, isn't it? I confess to getting my targets mixed up. Let's hope Roger didn't have any broken bats when he met with the first President Bush, either.

Posted by: Peter Henning | Feb 15, 2008 3:51:01 PM

Why would it be your last post on the topic? Its fantastic and relevant.

Posted by: DAG | Feb 15, 2008 8:47:01 PM

Buck up, professor -- I wouldn't say you had your targets mixed up; I think your post was right on target. And Clemens is not out of the woods on this one yet.

Posted by: Peter G | Feb 16, 2008 9:33:17 AM

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