The latest move by Clemens lawyer to directly question the immunity of Brian McNamee from libel suit is seen as a desperate tactics by McNamee’s lawyer. The judge holding the case previously dismissed the defamation suit filed by Roger Clemens against his former trainer now the accuser. The immunity was based on the fact that McNamee’s statements were part of a federal investigation. He was then invited by Senator Mitchell to give more information on the rampant steroid use in baseball.

In a supplemental motion by Rusty Hardin, Clemens lawyer, he asked the federal judge to reconsider his previous decision. His argument states that although McNamee was given immunity but that is not absolute. He also believes that McNamees public accusation against Clemens is not covered by that immunity. In a report from the nydailynews, Hardin said, “It simply cannot stand that McNamee’s maliciously false public accusations about Clemens’ alleged drug use should be considered part of the federal investigation and thus cloaked with absolute immunity.”

He quoted as an example the case of cyclist Tammy Thomas. Thomas was convicted last year for perjury. Assistant U.S. Attorney Matt Parrella argued in that case that the purpose of the government’s steroid probe was to nail distributors, not “alleged end-users”. Parella led the BALCO prosecution which includes the case of Barry Bonds.

Last December, Parella submitted a letter to Judge Keith Ellison explaining the role of McNamee in the federal investigation headed by Senator Mitchell. He said that he asked McNamee to provide information to Mitchell as a sign of cooperation. This led the judge to rule in favor of McNamee saying that the latter is immune from the defamation suit from Clemens.

In Hardin’s statement, “Taking this as true, it cannot be argued that granting an admitted drug dealer, McNamee, immunity and then forcing him to publicly accuse Roger Clemens of using steroids furthered an investigation that was designed to uncover and prosecute the illegal distribution of steroids.”

McNamee’s lawyer, Richard Emery called the action of Hardin as absurd. “It’s a reach, to say the least. If Rusty Hardin takes something out of context in a case in California, it’s irrelevant to our case,” he added.

The previous motion of Clemens’ legal team requested Judge Ellison to reexamine whether he was wrong in holding McNamee’s statements to Mitchell were absolutely privileged and to determine if the statements of McNamee about the steroid and HGH use of Clemens is not slanderous. They also asked the judge to reconsider whether the court has jurisdiction over the claims of McNamee in the Mitchell probe and on the web site of Sports Illustrated.

According to Clemens lawyers the decision may unwittingly give the prosecutors the power to grant absolute immunity to individuals who maliciously and falsely make public statements that accuse another of a crime. They further stated that it effectively permits the government to try individuals in the court of public opinion and thereby destroy their reputation and livelihood regardless of whether the government ever intends to charge the person with a crime, much less prove the allegations in a court of law.

The motion also stated that there can be no doubt that charging a professional baseball player with using steroids and HGH injures the player’s business, profession, and calling, and imputes to him the commission of a crime.

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