As noted earlier here, I believe the Mitchell Commission Report is deeply flawed and fails to confront squarely Major League Baseball’s long tradition of at least tolerating — if not outright promoting — the use of performance-enhancing drugs.
Moreover, Roger Clemens’ attorney, Rusty Hardin, is unquestionably one of Houston’s most talented trial lawyers.
However, I’m starting to wonder whether Hardin is out of his element in dealing with Clemens’ professional crisis of being fingered in the Mitchell Report.
The first inkling that matters are not being particularly well thought out in regard to Clemens’ problem was the announcement that Hardin had hired private investigators to assist him and attorneys in his firm in conducting “their own investigation into [Brian] McNameeís allegations” that he had injected Clemens with PED’s.
Now, maybe such a private investigation is a good idea to gather information informally that could be used to cast doubt on McNamee. But what purpose is served by announcing it publicly and making the information the target of Congressional subpoenas or discovery in a civil lawsuit, which is becoming increasingly likely? Sure, Hardin can claim that the information is privileged work product, but that’s far from clear. Why create the bulls-eye in the first place?
And, as John Royal pointed out, Hardin’s comparison of the Mitchell Commission investigation to the Army-McCarthy hearings of the 1950’s is a stretch, to say the least.
But what really has me scratching my head regarding Hardin’s strategy is this Murray Chass/NY Times interview of Hardin. Get a load of Chass’ impression after interviewing Hardin:

But what if Hardin found one or two people who could say they saw Clemens use steroids and H.G.H.? Would he immediately terminate his investigation and announce that the report was correct? I didnít ask, but based on his answers to other questions, I suspect that he would at least make it obvious that he was conceding.
Further, I believe that if he found credible evidence that Clemens used illegal substances, Hardin would convince Clemens that he had to be forthcoming and admit his use.

H’mm, that’s certainly an interesting impression to leave about one’s client. Chass goes on to make the following observation:

Finally, if Clemens did not use performance-enhancing drugs, then why didnít he accept the invitation to meet with Mitchell so that he could tell him his information was wrong? That was the time to challenge the information, not when it has already been published.
ìI donít think it would have changed anything,î Hardin said. ìThey havenít retracted anything. Thatís probably proof that if he had talked to them, it wouldnít have done any good.î

As Chass points out, what is there for the Mitchell Commission to retract? Clemens has done nothing but deny the allegations. Is Hardin suggesting that the Mitchell Commission would not have acknowledged Clemens’ denials of McNamee’s accusations had Clemens met with the Commission? Even as flawed as the Mitchell Report is, it’s highly unlikely that the authors would not have reported that Clemens denied McNamee’s allegations.
This is increasingly looking to me as a circumstance where Clemens has a first rate trial attorney working for him when what he really needs is a public relations crisis pro.
Update: At least the conversation about steroids and other PED’s is improving.