Roger Clemens' former trainer may be stretching an immunity defense against defamation suits too far by arguing he cannot be sued for testifying to the Mitchell Commission that he injected the pitcher with steroids and human growth hormone.

Under Texas law, “It is well-settled that communications made in the course of a judicial proceeding may not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made.” Thomas v. Bracey, 940 S.W.2d 340 (1997).

Brian McNamee has now invoked that protection in a motion to dismiss Clemens' defamation claims against him. What he told the commission, he argues, was “plainly part” of a federal investigation of steroid trafficking in which he had previously implicated Clemens and

the protection given to statements made to prosecutors must encompass the statements pointed to in the Complaint.

“As Mr. McNamee’s statements are at the core of prosecutorial activity, they must be immune from suit, and this case must be dismissed,” the motion says.

But there is no precedent for applying absolute immunity to the proceedings of a private entity. And in Texas, “the absolute [immunity] privilege is lost if the holder of the privilege repeats the statements outside the protected context within which the statements originally were made.” Alaniz v. Hoyt, 105 S.W.3d 330 (2003).

“I don't think there's any applicability when you're talking to a private commission,” Clemens attorney Rusty Hardin told the Los Angeles Times.

Absolute immunity in Texas protects “judicial, quasi-judicial, or legislative proceedings.” In deciding whether proceedings are quasi-judicial, Texas courts have recognized six criteria, some of which apply to the Mitchell Commission.

The commission, however, did not have the power “to make binding orders and judgments” or “enforce decisions or impose penalties” and, tellingly, McNamee does not even argue that its proceedings were quasi-judicial.

The thrust of his motion is that his statements to the commission are privileged because the feds

decided that having Mr. McNamee speak to Senator Mitchell was important to their investigation and decided to include the Mitchell investigators in their continuing interrogation of Mr. McNamee.

“[W]here prosecutors arrange and attend a meeting with a witness because those prosecutors decide that inclusion of such third parties will serve law enforcement purposes, the 'proper investigation of criminal activity' compels protecting that witness’s statements (in the face of criminal repercussions for lying) from a subsequent defamation lawsuit,” he argues.

Clemens himself says in the complaint that “McNamee appeared before the Mitchell Commission with federal authorities at his side.” But if the judge takes a cautious approach and looks no further than the unprotected context of the commission, the specific circumstances of McNamee's appearance would be immaterial.

By Matthew Heller
3/10/08