Is Ted Stevens Likely to Sue the Federal Government to Recover His Legal Fees?

Anchorage—

In the wake of the Attorney General’s bombshell decision earlier this month to throw in the towel on the Ted Stevens case based on prosecutorial misconduct, will the former Senator try to get the federal government to pay his legal fees?

The high cost of the defense would seem to make that pursuit a logical move for Ted Stevens. This blog has previously estimated that the five-week trial cost $200,000 per week, and that doesn’t count the substantial work in pre-trial preparation and post-trial litigation. The Legal Times has reported that “defense lawyers say Stevens easily shelled out at least $2 million” in total legal fees.

Visual evidence of all that spending was obvious last week when the judge dismissed the case. The Anchorage Daily News reported that all 13 of the defense attorneys who worked on the case appeared in court—five at the defense table with Stevens and another eight in a row of chairs lining the courtroom. Even the cheapest of those lawyers is pricey—the Legal Times noted that a Williams & Connolly associate attorney who graduated from law school in 2004 and just joined the White House counsel’s office reported that he made $220,000 last year at the firm.

The idea of Ted Stevens suing to get those legal fees paid by the feds is popular in some circles, as shown last week by the adoption of a resolution by the Alaska House of Representatives that “demands” that the federal government grant permission for such a lawsuit by the former Senator. This resolution passed by a vote of 34 to 1.

Actually, federal law already grants permission to Ted Stevens to sue for his legal fees. The legal standards for recovering fees and the reality of the process for seeking that recovery might tip the balance in favor of Stevens walking away from the case, however. A brief tour of the law here explains why.

Federal law specifically allows a defendant who has prevailed in a federal criminal case “a reasonable attorney’s fee and other litigation expenses” if the court finds that the prosecution’s position was “vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” (Hat tip to Ashby Jones in the Wall Street Journal’s Law Blog for this reference to a statutory note in 18 U.S.C. § 3006A.)

This statute sets a high bar for Stevens. Daniel Richman, a criminal law professor at Columbia University, told the Wall Street Journal that to win a motion for fees a defendant would have to show that “‘there was really no basis to the prosecution.’” Richman believes that such a showing “‘is nearly impossible to make.’”

Such a showing is not unknown, however. Shortly after the dismissal with prejudice of the Stevens case, a federal judge in Miami ordered the Department of Justice to pay more than $600,000 in legal fees to a criminal defendant following revelations that prosecutors had authorized witnesses to surreptitiously tape their conversations with the defense team. (Thanks to the Letter of Apology blog.)

Such orders are still very rare, however. Stevens and his attorneys might not want to sue for legal fees because such an effort would change the current focus on prosecutorial misconduct in the course of the trial and turn the public’s attention to all the factors the Department of Justice considered when deciding whether to prosecute him. Although the Legal Times suggested that some see the former Senator now as “a victim of corruption,” the newspaper indicated that the process of pursuing a lawsuit to recover legal fees might make him look more like “a scheming politician.” Michael Horowitz, a lawyer in the business fraud and complex litigation group of the Washington law firm of Cadwalader, Wickersham & Taft, told the Legal Times that “‘He may be best positioned now politically to leave the record as is. He doesn’t need much more.”