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Clemens lawyer Rusty Hardin still doesn't get it

Aug 20, 2010, 9:59 AM EDT

Roger Clemens is ultimately responsible for his own fate. But he's had absolutely no help from his lawyer.

Here’s Roger Clemens’ ace lawyer, Rusty Hardin, speaking about his client’s indictment:


He’s right about reason being thrown out the window when it comes to baseball. People freak the hell out about steroids and have been doing so since at least 2002, when Jose Canseco and Ken Caminiti began to speak up about it all.
I wish some perspective was maintained, but I know that’s a vain wish.

But you know what? It was Rusty Hardin’s job to assess all of this in late 2007 and early 2008. To realize how combustible the Mitchell Report and its fallout was and would continue to be and to advise his client to proceed in a manner which limited his legal risk.  It may not be fair that Congress and the press and the public was going crazy, but it wasn’t Hardin’s job to change their minds about the fairness of it all. It was his job to keep his client out of legal trouble and he failed miserably in that regard.

At some point — a point before Clemens went on 60 Minutes and sued Brian McNamee and held a big silly press conference — Hardin should have realized that playing PR like Clemens was doing was a dangerous, dangerous game.  This is not hindsight. I don’t have the fraction of the legal skills or experience of Rusty Hardin and I saw it and was talking about it at the time (see here, here and here). Hardin should have seen it too and should have impressed upon Clemens that discretion, in this instance, was the better part of valor. This he did not do.

At the end of the above video, Hardin talks about convincing the public or public opinion or whatever.  Even now, more than two years later, he doesn’t seem to understand that shaping what the public thinks is not his job. That’s a job for publicists. Hardin was and his Clemens’ lawyer, and he should have done everything he could have to avoid his client getting hauled before a Congressional committee in the first place. He failed at that job, and in this regard he’s continuing to fail.

  1. BC - Aug 20, 2010 at 10:11 AM

    Is it me, or is this Hardin dude about as sharp as a sack of wet cement?

  2. Chris Fiorentino - Aug 20, 2010 at 10:33 AM

    Um, Craig, how do you know that Hardin DIDN’T try to impress this upon Clemens and was rebuffed? Obviously, Roger does what Roger wants and it’s pretty clear that Roger wants to fight this. Hardin had two choices…drop him as a client or fight with him. He chose the latter. I think he “gets it” just fine, could not do anything about “it”.

  3. Trevor B - Aug 20, 2010 at 10:38 AM

    What if… Just what if Clemens REALLY is innocent and this is all a big plot to take him down? You know with a plot as big as Oceans 11, 12 and 13 combined! We all know how many billions of dollars we could extort from Clemens with this sort of masterpi… oh what? huh… ummm… oh Clemens isn’t a billionaire? Wait no… What? Oh he did take those steroid thingers…

    Nevermind, Congress get your steel-toes on… You’ve got an ass to kick. :-)

  4. Craig Calcaterra - Aug 20, 2010 at 10:40 AM

    My view is that if a lawyer has a client who will not take advice and the failure to take the advice is, in the mind of the lawyer, to the legal detriment of the client, the lawyer should withdraw from the representation.
    Hardin didn’t do that, either because he agreed with the strategy or because he just likes being Roger Clemens and all that goes along with it a bit too much.

  5. Scott - Aug 20, 2010 at 10:44 AM

    Or because Roger Clemens pays him a boatload of cash

  6. Scott - Aug 20, 2010 at 10:47 AM

    An excellent story by Posnanski about a look at Clemens’s personality:

  7. BC - Aug 20, 2010 at 10:47 AM

    That’s Oceans 36. That’s a lot of Oceans. Are you counting the Caspian Sea as an Ocean?

  8. Chris Fiorentino - Aug 20, 2010 at 10:51 AM

    Yeah, in a fantasy world, that would have happened here. However, we both know that Clemens is a big-money client, and I believe a good friend of the Clemens family, and you yourself even said that the gov’t is going to have a hard time convicting Clemens here. So why not keep him as a client.

  9. Proudly Canadian - Aug 20, 2010 at 10:52 AM

    Rusty Hardin has made a lot of money off Clemens. Is this proof positive that a fool and his money can easily be parted.

  10. YANKEES1996 - Aug 20, 2010 at 11:07 AM

    Craig, your view is an admirable one and I believe that when representing a client who has substantial financial holdings there is not going to be a huge number of lawyers that see things the same way you do.

  11. BC - Aug 20, 2010 at 12:14 PM

    Rusty Hardin and Brett Favre’s agent should get together for drinks.

  12. David - Aug 20, 2010 at 12:57 PM

    I agree with Chris Fiorentino that there’s no reason to assume that Hardin has NOT been advising Clemens to stay away from this. If Clemens is rejecting that (potential) advice, I suppose we could argue that Hardin should then “withdraw from representation” because that would (a) help Clemens realize the strenuousness of the advice and (b) protect Hardin’s integrity of not having to say things that he doesn’t believe….but this is America, and money trumps integrity almost every time. Clemens is worth millions of dollars in cash and millions more in publicity for Hardin. He could very reasonably view this as an opportunity to build a nest egg for him and his entire family for decades to come – swallow your pride and s— out a golden egg.

    On a separate note, I just wanted to note this about the indictment: there is NOTHING in that indictment that wasn’t public knowledge within weeks of the February 2008 Congressional hearing. Therefore, the U.S. attorneys could have gotten an indictment immediately. The fact that they instead chose to spend 2.5 years investigating this means that they probably have TONS more dirt on Clemens.

    I believe that people should all understand that, as a legal matter, this is no more about “steroids” than Bill Clinton’s impeachment was about sex. (Personally, I think that Viagara is 100x more disgusting than “steroids”.) This is about perjury, which I believe we must have absolute zero tolerance for.

  13. Old Gator - Aug 20, 2010 at 1:02 PM

    Don’t count the Aral Sea. It’s now official called the Aral Pond.

  14. Old Gator - Aug 20, 2010 at 1:06 PM

    Craig, late last night the ESPN legal guy – can’t recall his name, my brain was fuzzed by two hours of godawful music I sat through waiting to get to the band I really wanted to hear – asserted that Clemens wasn’t paying attention to his lawyers and that he kept leaving them in positions where all they could do was damage control.
    At what point does a lawyer finally say, listen, if you’re not going to pay attention to what I tell you, go find another lawyer? Does it figure that for a guy of Hardin’s stature, bailing on a client might look even worse than scurrying along behind him with the elephant poop scoop?

  15. Craig Calcaterra - Aug 20, 2010 at 1:21 PM

    Legal guy was probably Lester Munson.
    If Hardin was truly of a different mind than Clemens, he would have bailed before the defamation suit against McNamee was filed, knowing that it would dig up awful stuff like the Mindy McCreedy business. Certainly he should have counseled against the weird press conference in which the McNamee tape was gone.
    Withdrawal as counsel is a big step. You have to ask yourself if withdrawing publicly, harms the client more than the legal course he’s hellbent on pursing. Your own reputation shouldn’t enter into it, even though it always does.

  16. crk - Aug 30, 2010 at 1:21 PM

    wow do you people even know who rusty hardin is? He’s one of the s#umb@ags of the legal world. His clients have included EXXON MOBILE and FORMOSA PLASTIC, one the biggest most dangerous polluters in the world!! He doesnt give sh#ts about anything except money, and he’s getting paid alot by Clemens. He cares nothing of his reputation or morals.

  17. crk - Aug 30, 2010 at 1:22 PM

    ps the guy wears COWBOY HATS!!

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