Clemens' Attorney Finds McNamee Barks Back

As was discussed and ridiculed here previously, Roger Clemens' attorney Rusty "Trombone" Hardin threatened to sue anyone who publicly stated that his client used performance-enhancing drugs.

Now former Clemens trainer and current Clemens accuser Brian McNamee is getting into the act. According to ESPN, McNamee's attorney, Richard D. Emery of New York City, warned Clemens and Hardin that they would sue Clemens if he indicates that McNamee is lying. Clemens is scheduled to appear in an interview to be aired on 60 Minutes this Sunday. From what I remember of Howard Stern's appearance on the show, interviews are conducted early in the week to be aired that Sunday. The horse might have already left the barn.

There is a subtle difference between Clemens previous comments and comments that would be defamatory. Previously, Clemens said "I did not provide Brian McNamee with any drugs to inject into my body. Brian McNamee did not inject steroids or human growth hormones into my body." This is different from calling McNamee a liar or defaming his character (though that is implied). One could construe Clemens comments as merely stating that McNamee is mistaken. If Clemens were to say, "Brian McNamee is lying to save his own skin," that might be a defamatory statement if McNamee can prove his allegations.

Without getting too technical, a suit for defamation succeeds when the defamed person can show that the defendant made a public false statement about the plaintiff, communicated to third persons, causing damage to the plaintiff. If the defamed is a public figure, the plaintiff must also show the defendant acted with actual malice. A plaintiff can be a limited public figure, as Terry Ratkola was found to be when she spearheaded a campaign against Married with Children, leading to her becoming the butt of many jokes. However, the public figure exception is based on First Amendment protection. Since McNamee never asked for this attention, any defamatory statements made by Roger Clemens would not elevate McNamee's burden to having to show actual malice.

One aspect of McNamee's threat does raise interesting possibilities however. In order to get leniency in his own case, McNamee must fully cooperate with the government. That means he cannot withhold any information which would further the government's case. I don't know the details of McNamee's prosecution, but he would need more than what Mitchell included in his report to decisively prove that his allegations are true. I am not certain whether the Feds have additional evidence that they asked Mitchell not to use, or if the Feds told McNamee that he could only tell Mitchell his story, but not share any of the evidence. Since it is an ongoing prosecution, the possibilities are nearly endless.

That's precisely why I thought it was so silly for Clemens and Hardin to come out guns blazing right off the bat. They cannot possibly know what evidence is out there. There is a possibility that Clemens is telling the truth, but there is no way for Hardin to know that. The best protection for his client would be to wait a little and see what else simmers up. Then take up the "Roger is Innocent" tour as training camps open next month.