The attorneys representing Roger Clemens are pressing their demand in Washington that the government be forced to pay thousands of dollars in legal fees tied to the botched prosecution of the former baseball star this summer.
The Justice Department is opposed to the demand for fees, saying the presiding trial judge, Reggie Walton, does not have the power to force the government to pay Clemens’ criminal defense team. Prosecutors said recently that the trial mistakes did not amount to misconduct.
Clemens’ attorneys, including Houston’s Russell Hardin Jr., said in papers filed Tuesday night in Washington federal district court that Walton indeed has the inherent authority to sanction the government for violations of court orders and abuse of the judicial process. Clemens' lawyers have not specified the dollar amount they are seeking.
Prosecutors have apologized for government mistakes that led to Walton’s declaration of a mistrial in July. The government’s legal team presented evidence that Walton had earlier not authorized. Clemens is charged with perjury and other crimes for allegedly lying to Congress about his reported use of performance enhancing drugs.
Walton’s power to force the government to pay part of Clemens’ defense “does not vanish just because the offending party is the federal government,” Hardin said in the court filing (PDF).. Hardin and Cooley partner Michael Attanasio said the prosecution’s claim that Walton is powerless is “illusory.”
Clemens’ lawyers reject the government’s position that sovereign immunity—the notion that the government is generally immune from liability—provides a “flat bar” to the assessment of attorneys’ fees. Hardin called the government’s argument “radical.” Such a rule, he said, “would be contrary to sound public policy.”
“If the doctrine of sovereign immunity truly does preempt a court’s inherent judicial power in any criminal proceeding, then defendants would be forced to endure situations where prosecutors could violate pretrial orders, commit discovery abuses, maliciously run up defense fees, and engage in any number of other imaginable contemptible acts without recourse,” Hardin said in court papers.
Hardin urged Walton to rule in favor of “fundamental fairness, not the government’s crabbed interpretation of the powers of an Article III judge.”
Walton has not indicated when he will decide the legal fee dispute. The Clemens retrial is scheduled for April.