By David Epstein
February 10, 2008

Roger Clemens' silver-tongued lawyer might have to rein in his rhetoric.

Rep. Henry Waxman (D-Calif.), chairman of the congressional Committee on Oversight and Government Reform, sent Rusty Hardin, Clemens' Houston-based lawyer, a letter urging him to quickly "clarify the record" regarding comments he made last week about Jeff Novitzky, an IRS special agent and lead investigator on the BALCO case who questioned Brian McNamee about Clemens' alleged drug use. Waxman's office provided with a copy of the letter on Sunday.

Hardin was apparently perturbed last week when Novitzky stated his intention to attend Wednesday's hearing in Washington, D.C., where Clemens and his former personal trainer will come face to face and answer questions concurrently for the first time since McNamee's allegations that Clemens used steroids and human growth hormone became public on Dec. 13.

Hardin told The New York Times that it would be "unbelievable" and "brazen" for Novitzky to attend the hearing in person, when he could just as easily watch it on television. Hardin went on use an expression that Waxman took particular exception to: "I can tell you this," Hardin said, "If [Novitzky] ever messes with Roger, Roger will eat his lunch."

In his letter to Hardin, Waxman notes that lawyers for both sides have made "inadvisable" comments, but refers to Hardin's lunch-eating jibe as "beyond any personal enmity that exists between Roger Clemens and Mr. McNamee." Waxman adds that he does not know Hardin's "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."

Waxman has never met Novitzky, and said that he is not aware of Novitzky's plans regarding the hearing but informed Hardin that "it is not your client's prerogative to dictate who attends or does not attend the hearing."

In a written response to Waxman on Monday, Hardin claimed sole responsibility for his comments, saying that they were made "without the knowledge or approval of Roger Clemens." Hardin acknowledged that his "Roger will eat [Novitzky's] lunch" expression was an accurate quote, but, in retrospect, characterized it as both "inelegant language" and "apparently capable of being misconstrued." Hardin said that he meant to suggest that if Novitzky "decided to legally pursue Roger Clemens...I believe he would lose." Hardin added that he "no more intended to intimidate Agent Novitzky than [Waxman] intended to intimidate me by publicly releasing a letter chiding me for my conduct."

Meanwhile Richard Emery, an attorney for McNamee, defended Novitzky's actions. "I think the news that [Novitzky] is going to be at the hearing speaks thunderously about his commitment to making sure that people are under his watchful eye," Emery told "[Novitzky] is the accountability in this whole drama." He added that he does not think Novitzky has a personal vendetta against high-profile athletes, but said the agent's interest in holding such public figures accountable "does rise to the level of a professional commitment. I think he realizes the social importance of stemming this tide."

Both Emery and McNamee's other lawyer, Earl Ward, have defended the conduct of Novitzky and other federal investigators who questioned McNamee in the past. In the defamation lawsuit that Hardin filed on behalf of Clemens, an excerpt from a tape-recorded phone conversation between Hardin's investigators and McNamee is used in an attempt to show that Novitzky and another investigator pressured McNamee into giving up Clemens' name.

Ward was present when McNamee was questioned by federal investigators and has consistently characterized those agents' conduct as professional and denied that his client was under extraordinary pressure beyond the obvious threat of prosecution for illegal steroid distribution. Emery and Ward say that when McNamee spoke with Hardin's investigators, he exaggerated the pressure he was put under because he hoped to salvage his relationship with Clemens.

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