Legal News

Can Ted Stevens Sue the Government . . . And Win?

By Ashby Jones

As we told you on Wednesday, the Justice Department moved to dismiss former Sen. Ted Stevens’ indictment on Wednesday, effectively voiding his conviction from last October on seven counts of filing false statements on his Senate financial disclosure forms. Click here for Wednesday’s LB post; here for Thursday’s WSJ article.

Nobody seems overly thrilled with the outcome, least of all Stevens’s attorney, Williams & Connolly’s Brendan Sullivan. “This jury verdict was obtained unlawfully,” read the statement penned by W&C. “The misconduct of government prosecutors, and one or more FBI agents, was stunning.” The statement went on to decry the “corrupt” conduct of attorneys and the FBI in the case, though it said Holder and the new prosecution team, along with Emmett Sullivan, the trial judge, were “heroes” for bringing the information to light.

In a news conference, Brendan Sullivan said this about the decision to go after Stevens: “It was a bad judgment to have done so in the first place. He’s a war hero. He served in the Senate for 40 years, and he was the target of prosecutors who wanted to enhance their own reputation.”

One thought struck us today, reading over all these comments — many contained in the Anchorage Daily News and the Washington Post — what happens now? Aside from asking for the resignation of current Alaska Senator Mark Begich, who beat Stevens in a November election that fell only weeks after Stevens’s conviction, could Stevens possibly sue the Justice Department?

For a little help on that question, we checked in earlier today wtih Daniel Richman, a criminal-law professor at Columbia.

Richman pointed us to a federal statute called the Hyde Amendment, which, according to this 2005 Second Circuit opinion in a case called U.S. v. Schneider, was passed in 1998 and is found as a statutory note to 18 U.S.C. § 3006A (who knew?). The amendment provides:

During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], may award to a prevailing party, other than the United States, a reasonable attorney’s fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.

Okay, so what does this mean? According to Richman, an aggrieved defendant needs to show that “there was really no basis to the prosecution,” a showing, Richman feels “is nearly impossible to make.” He adds: “I suppose we could come up with some crazy set of facts that haven’t been revealed yet in the Stevens matter that would give some credence to this position, but given the facts as the public knows them now, it would be very hard to make this kind of case.”

In dismissing the claim brought by Mr. Schneider, the Second Circuit seemed to make clear that the intent of the prosecution needed to be improper. “We note that the statute does not allow an award for any instance of vexatious, frivolous, or bad-faith conduct. An award is allowed only where the court finds that ‘the position of the United States was vexatious, frivolous, or in bad faith.’ “

Full post as published by Law Blog - WSJ.com on April 02, 2009 (boomark / email).