By CBS4 Political Specialist Shaun Boyd

DENVER (CBS4) — The attorney for Kent Thiry says the government deliberately withheld exculpatory evidence in its anti-trust case against the former CEO of Denver-based DaVita, one of the country’s largest kidney care companies.

Kent Thiry

Kent Thiry (Photo By Karl Gehring/The Denver Post via Getty Images)

Cliff Stricklin, a former federal prosecutor and lead trial attorney on both the Enron and Quest financial fraud cases, says if the case goes to trial, the truth will come out and Thiry will be cleared of all charges.

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An indictment handed down by a federal grand jury accuses Thiry of violating the federal Anti-Trust Act by agreeing with the CEO’s of two other companies not to poach each other’s top executives unless the employees got their bosses approval first.

The Department of Justice says no-poach agreements are illegal, with no exceptions.

However, in an exclusive interview with CBS4’s Shaun Boyd, Stricklin says not only are certain agreements legal under the Anti-Trust Act, they’re sanctioned by the government.

“The Department of Justice is trying to expand reach and have more say over how American does business. If that’s the case, let Congress pass a law.”

Even worse, he says, it edited an email to make it appear Thiry was guilty. In an excerpt of the email used in the indictment, a human resources employee at one of the other companies says they can’t hire from DaVita “unless candidates have been given explicit permission by their employers that they can be considered for employment with us.”

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(credit: CBS)

Stricklin provided CBS4 with, what he says is, the full email.

It explains why the employee needs to get permission first saying, DaVita is a priority strategic partner and “we have a company policy that we don’t recruit from our clients and strategic partners unless candidates have been given explicit permission by their employers that they can be considered for employment with us.”

“The reason they didn’t want show you what it actually says is because it shows what DaVita and Kent Thiry are doing is completely legal,” says Stricklin.

The anti-trust act, he says, explicitly makes an exception for no-poach agreements between companies in a strategic partnership.

Despite the no-poach agreement, a spokesperson for Thiry says, at least 15 senior level employees moved from one company to the other.

The U.S. Chamber of Commerce is among those that’s filed a brief opposing the prosecution. It essentially accuses the Department of Justice of changing the law, without Congress or the courts input and without any notice to the business community.

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Thiry’s initial court appearance is next week Tuesday. If convicted, he could face up to ten years in prison.

Shaun Boyd