Clemens decision due soon

Roger Clemens could be days away from learning whether Congress will refer him for a perjury investigation and when a Texas court might decide whether to allow his defamation suit to proceed.

In testimony before the House Oversight and Government Reform Committee, Clemens said he never used steroids or human growth hormone, contradicting the testimony of his former trainer Brian McNamee.

Rep. Henry A. Waxman (D-Beverly Hills), the committee chairman, told the New York Times on Monday that he expected a decision on whether to refer the matter to the Justice Department by the end of the week.

On another legal front, a lawyer for McNamee said he plans to ask next week that Clemens’ suit be thrown out on grounds McNamee is immune from liability for defamation.

The relevant legal principle, known as absolute privilege, shields citizens from defamation suits for statements made in judicial proceedings or to government agents, said Mathew Rosengart, a former federal prosecutor and adjunct professor at Pepperdine Law School.

McNamee told federal agents -- and, subsequently, told former Sen. George Mitchell -- that he injected Clemens with steroids and HGH at least 16 times. In Clemens’ suit, McNamee claims he spoke with Mitchell only under threat of prosecution and with federal agents in the same room, reading his statements to Mitchell.

“He only spoke to the federal government -- and to the Mitchell people -- at the request and coercion of the federal government,” said Richard Emery, one of McNamee’s lawyers. “The feds told him he had to talk to Sen. Mitchell, and he did. We take the complaint on its face.”

Rusty Hardin, the lead lawyer for Clemens, said absolute privilege would not apply because Mitchell and his investigators were employed by and acting on behalf of Major League Baseball. “I don’t think there’s any applicability when you’re talking to a private commission,” Hardin said.

Baylor Law School professor Jim Underwood said Emery would fight “an uphill battle” on this issue.

“The further away from the courthouse you get, the less application absolute privilege has,” Underwood said. “The argument for absolute privilege, even with the FBI, is not certain in Texas. Going down the street and talking to George Mitchell is less certain.”

However, veteran Houston libel lawyer Bill Ogden said he believed McNamee’s statements would “likely” be classified as privileged and the case dismissed.

“A lot of things outside the courthouse have been held under Texas law to be quasi-judicial proceedings,” Ogden said. “Those proceedings are also privileged. Texas has tended to be fairly liberal in extending the quasi-judicial privilege to statements made in contexts other than formal court proceedings.”

In addition to seeking dismissal via absolute privilege, Emery said he would file a separate motion asking the court to disqualify Hardin, who briefly represented Andy Pettitte.

Pettitte testified that Clemens told him he had used HGH, presenting what Emery called a conflict of interest for Hardin.

“If and when Mr. McNamee’s lawyers file such a motion, we will respond with a filing to the court,” Hardin said.

By that time, Clemens could be facing a perjury investigation. Staff members of Waxman’s committee have prepared a draft letter referring Clemens to the Justice Department, the New York Times reported.

It is uncertain whether Waxman can reach agreement with Rep. Tom Davis (R-Va.), the committee’s top Republican, on a bipartisan decision in this matter.

Committee spokeswoman Karen Lightfoot would not comment. The Republican staff members on the committee have not yet been consulted, a source said.

It also is unclear whether the Justice Department would be asked to investigate only Clemens or also McNamee.

The questioning in Clemens’ hearing split largely along partisan lines, with Democrats skeptical of Clemens and Republicans challenging McNamee. The Justice Department had agents at the hearing and could investigate without a request from Congress.

In a bipartisan request, the committee last month referred Miguel Tejada to the Justice Department after the Mitchell Report included statements that Tejada used steroids and HGH. Tejada previously had told the committee he never had used performance-enhancing substances.

--

bill.shaikin@latimes.com