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.
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."
Both Emery and McNamee's other lawyer,
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.