Roger Clemens: Rusty Hardin Questions Feds Jurisdiction & Dealers' Deal

Patrick ReadSenior Writer IApril 18, 2008

By Patrick Read

Part 2.

Washington D.C.-  When given the chance to file a brief, and argue about any concern relative his role in Clemens’ suit against McNamee, Andy Pettitte kept silent. And thus a warming trend in Houston cast rays of sunshine on April 9, as Judge Keith Ellison heard arguments from both sides regarding Richard Emery’s attempt to have Rusty Hardin, and the civil suit dismissed.

Emery argued for Hardin’s removal citing a "conflict of interest" exists, and that Pettitte should be protected under the nature of "attorney client privilege."  Pettitte apparently has no problem with Hardin  representing Clemens, and being involved in the case though.

If Pettitte were worried that "Hardin would attack Andy on cross examination" , as Emery contends, then Andy Pettitte's lawyer himself would have clearly made that concern known in court.  Pettitte didn't even show at the hearing to weigh in, he didn't file a brief, but instead he sat it out.  A rift may be developing between McNamee and Pettitte, as McNamee recently listed Pettitte memoribilia  on E-Bay along with Clemens. A rift has certainly developed between Hardin and Emery.

Emery believes that Pettitte is critical to the defense of Brian McNamee, and as Hardin represented Pettitte earlier in December 2007, Hardin’s knowledge of Pettitte may damage McNamee’s defense. In other words, too much truth can hurt.

Andy Pettitte shows up for Confesssional Deposition, but cut a deal to not have to testify before Oversight Committee.
Andy Pettitte shows up for Confesssional Deposition, but cut a deal to not have to testify before Oversight Committee.Jonathan Ernst/Getty Images

Hardin argued that Pettitte told him nothing more than what he has said publicly, and that Andy was never in a binding legal contract. “Pettitte never paid me for any services.” As a matter of fact Hardin contends he denied Andy representation after hearing Pettitte’s story in December, 2007.  ESPN's TJ Quinn interviewed Hardin, who said at the time of the Report's release that he wasnt representing anybody at all. He had been contacted by Clemens to issue a public denial, and nothing more at that point.

If we rely on precedence thus far regarding the "allegations", then the conflict of interest , should not matter.  Hardin could pretend a conflict doesn’t exist at all, as Mitchell did, and move forward.  Mitchell is the Legal Consultant who sits on the Board of Directors for the Boston Red Sox, which is not exactly being "an independent source."  A conflict of interest would only serve to balance the levels.  Of course Clemens does not have the full weight of the government on his side.

Then again, Rusty Hardin worked for Ken Starr during the Prosecution of Bill Clinton. He also worked on The Duke Lacrosse Rape Charge, a case in which there was real government corruption and collusion. 

The governments’ Abuse of Authority in the Duke Lacrosse Team Case, which Hardin successfully defended, resulted in a Prosecutor being disbarred.  Relative to the Mitchell Report the Federal Prosecutors  may have been operating outside of their jurisdiction, per note 369, found on page 193, and riddled throughout the Report in fine print

McNamee raises his hand & swears to tell the truth at Oversight Committee
McNamee raises his hand & swears to tell the truth at Oversight CommitteePool/Getty Images

Judge Susan Ilston (Balco Trial Judge), certainly suspects the Fed's, and their "motives and tactics."  Finally, regarding the Feds role,  the Hearst Corporation filed a grievance against the Federal Government's  involvement in the Mitchell Report, and thier selection of what information to release, and to whom.

So while most Americans followed ESPN to the gallows over the allegations against the Duke Lacrosse Team, the outcome showed how wrong society can be while "rushing to judgement."

Since the Department Of Justice failed to bring a "distributor" to justice, which is contrary to it's own policy, (page 340,Mitchell Report) it is up to Clemens to seek out his own justice. And carrying that burden is costly.  Maybe Clemens could do some interviews and charge seven figures to help pay his lawyers. Maybe Clemens could cut Hardin in on a future book deal to pay his exorbitant legal fee. Or is that just for accusers?

Removing Hardin would cost Clemens his right to an attorney, all the research, and investigation that Hardin and his team has done, and even more money.  Lawyers sometimes try to get one side to spend away funds marked for legal matters instead of sticking to the facts. 

As it were, precedence exists for both sides of the coin. In it that Hardin could be removed citing case law, and Hardin could stay on, citing the same.

WASHINGTON - FEBRUARY 13:  Major Brian McNamee (R), former personal trainer, sits at the witness table during a House Oversight and Government Reform Committee hearing February 13, 2008 in Washington, DC. The committee is hearing testimony on use of stero
Mark Wilson/Getty Images

Judge Ellison gave an indication to his ruling. Andy Pettitte had the opportunity to file a brief, and his representative could have shown up to argue. Ellison said if Pettitte believed his rights were being violated, he or his representatives would have appeared at Wednesday's court hearing and voiced their concerns. "Instead, he's sitting it out."

If Andy Pettitte isn’t concerned about sharing the “truth,” for which Emery seems panicked about, then why would the court rule as if Andy  were concerned?  Conflict of Interest?  Consider the "Conflict of Interest" by Mitchell, and the precedence it set with this case.  Attorney client privilege can't be the issue either, especially when the client doesn't care about the privileged "truth" for which the attorney may share, and says has already been shared regardless.

Richard Emery may well need to stop “smoking his own dope” as Hardin contends, or try picking up a phone and talking to Pettitte before so courageously fighting for Andy's rights in court for him. Does he represent Pettitte now? Emery should just file (as he said in December, 07) a law suit against anyone calling his client a liar, or just swallow hard and move forward.

There are ample individuals who call McNamee a liar now. Among them are: Clemens, Hardin, all of the Republicans in Congress, Dr. Taylor, Dr. Gross, Shanahan, and Tommy Craig, Gene Moynahan, Dr. Lintin, Dr. O'Malley, a MRI, a credit card receipt, a nanny; and now, Jose Canseco.  All of whom were advised of jail time, as was McNamee, for making false official statements.  But society takes McNamee at his word even though he has morphed his account, and changed the Mitchell Report altogether.  Of which Mitchell, and Bud Selig still stand by.

In his deposition, McNamee changed the dates in the Report,  the number of injections, the locations, and then testified to never using the word abscess, "Tommy Craig did", who supported CLemens account with out privileged knowledge of what McNamee said in his depo.  McNamee was interviewed a total of 8 times, and swore he told the truth in the Report before Congress.  Yet in his deposition he totally trashed the Report's Credibility, as did Canseco. The threat of jail is given as a reason for McNamee to tell the truth, as it is for the crowd of those interviewed now in the room. 

Canseco passed a polygraph, and hasn't been wrong yet. McNamee has not.  Mike Stanton, and Jorge Pasada both trained with McNamee, and Clemens.  Posada believes Roger Clemens.  And Staton denies the allegations regarding him in the Report as well. As does David Justice. All were / are NY Yankees that say the Mitchell Report got it wrong.  

Finally, Richard Emery outed his client for having committed perjury.

When asked in Congress, under oath, if he had “any deals with the Prosecutor’s office”, Brian McNamee answered “No Deals.”   Yet Emery argued to have the Defamation Suit dismissed altogether, as McNamee was “operating under absolute immunity, a deal offered him by the Federal Prosecutors office”(here).

Then again, McNamee also said under oath that he was not a drug dealer.  However, he got immunity from the Feds for what exactly? Obviously he possessed, procured, trafficked, and administered illegal drugs. Of which Emery claims that McNamee was only compelled to “speak” by the government.  

The avoidance of jail time is what compelled McNamee, and retaining his profession too. 

McNamee says he had no deals, and is not a drug dealer. Yet, he got a deal to avoid jail as result of his drug dealings. Mitchell even says he was a "sub-dealer under Radomski", but Radomski and McNamee weren't dealing together until, as proven by checks, 2004 and 2005, when Clemens is not accused of using.  

Did McNamee lie? His past (rape case lies) show that when McNamee is in trouble, he lies.  Even to the cops investigating him, regardless of evidence.  Thus the suit should move forward.

Next Jose Canseco.