02/27/2008 03:29 pm ET Updated May 25, 2011

When Clemens Gets Out of Jail, He Should Sue His Lawyers

Congress has now referred the Roger Clemens matter to the Justice Department. If the Justice Department watched the same Congressional testimony I watched, it will probably charge Roger Clemens with perjury. If a jury is shown the same Congressional testimony I watched, they will probably convict Roger Clemens of perjury. At which point Roger Clemens will probably go to jail.

Which is a bummer--because the whole thing could have been avoided. How? Through a cooler-headed response to the Mitchell Report...and better legal representation.

Do I mean that Clemens' lawyers should have jumped out of their chairs even more often at the hearing, to protest the Committee's pulverization of their client? No, that absurd behavior just made Clemens look even more guilty. What I mean is that Clemens's lawyers--Rusty Hardin, et al--should have sat him down before the hearing and said:

"Roger, I'm sorry, but I'm not going to let you testify. I understand how painful this must be for you, having your reputation ruined by a pipsqueak trainer, but based on the evidence I've seen, the Committee is going to be able to make you look guilty. If you testify, there is a good chance you'll be charged with perjury, and as your attorney, I simply can't let you walk into that. If you insist on testifying, therefore, I'm going to have to resign."

Based on the convictions of Martha Stewart (whose trial I covered for Slate) and other superstars for whom "the coverup is always worse than the crime," too many lawyers bend to the will of their arrogant clients--and, in doing so, help their clients get convicted of crimes.

Roger Clemens never should have testified at the hearing--because his lawyers never should have let him. If Roger Clemens insisted on testifying over his lawyers' protests, they should have resigned. It's one thing to fail to get your client exonerated. It's another to help him or her get charged in the first place.

UPDATE: NABNYC intelligently points out below that attorneys can't force their clients to do something. As long as Hardin, et al, had a serious come-to-Jesus conversation with Clemens, let him know exactly how much risk he was taking, and strongly counseled him not to testify, they might have done everything they could reasonably have been expected to do. But I still think there's a case to be made that they just should have walked. This move would have been the best legal representation Clemens ever had.