Leaks in DOJ Tobacco Case:
Today's New York Times offers an unusually public perspective on Justice Department infighting in the context of recent developments in DOJ's anti-tobacco suit. I haven't been following the case, but it seems that two weeks ago, at the end of a nine-month racketeering trial against the major tobacco manufacturers, DOJ changed the scope of the penalties it was seeking from $130 billion to $10 billion. The speculation was that this was a politically motivated decision imposed by DOJ political appointees, but in a USA Today editorial Associate AG Robert MacCallum denied the charge and offered other reasons for the change in policy.

  The latest development appears to be a leak by DOJ career lawyers indicating that the career lawyers involved in the case strongly opposed the decision but were overruled by DOJ political appointees who became actively involved in the litigation. The Times story is a bit cagey about saying that the career lawyers leaked the documents to them; the story refers to the documents as "newly discovered" documents "reviewed by" the Times. But I think I'm on fairly safe ground when I assume that DOJ career lawyers were behind the leak. A number of factual claims in the article are expressly based on anonymous sources within DOJ, and the story features the money quote by "a Justice Department employee involved in the case who insisted on anonymity for fear of retaliation": "Everyone is asking, 'Why now?'" the employee asks. "Why would you throw the case down the toilet at the very last hour, after five years?"

  I confess I don't know anything about the tobacco trial or its merits, or whether the change in the damages sought was proper or improper. (On one hand, the fact that DOJ politicals made the final call isn't suprising, as in my experience major litigation decisions are often made by DOJ bigwigs who are political appointees. On the other hand, this story says that the DOJ Office of Professional Responsibility is investigating the case, which suggests that political interference if it happened was a no-no. But beyond that I have no sense of the merits here.) Either way, it's pretty rare for DOJ career lawyers to be so ticked that they leak internal documents to the New York Times, which makes me think that we probably haven't heard the last of this story.

  Comments enabled. As always, civil and respectful comments only.

Related Posts (on one page):

  1. More on DOJ Anti-Tobacco Case:
  2. Leaks in DOJ Tobacco Case:
A Connecticut Lawyer (mail):
The Bush Administration was elected in 2000 in part on a campaing promise of tort reform. The Clinton DOJ lawsuit against the tobacco companies should have been Exhibit A for tort reform, and should have been dismissed back then. However, political pressures kept the case alive (I don't recall any MSM editorials complaining about that political influence on the DOJ). I think the Bushies decided to give the trial team (the Clinton DOJ set up a special trial team of anti-tobacco zealots to try this case rather than have the main DOJ lawyers handle it) enough rope to hang themselves. That's exactly what has happened.

Since then, the courts (both the DC and CA) have dealt a series of near-fatal blows to the DOJ case. First, the DC dismissed all of the medicare reimbursement claims. Then the CA held that RICO did not allow for disgorgement of profits resulting from past acts. Poof! the Government's $280 billion claim for medicare reimbursement and/or disgorgement went out the window.

The CA went even further, holding that RICO only allows forward looking remedies - remedies that would prevent future misconduct. Now the DOJ trial team tried for a long time to pretend this didn't happen. It presented in the remedies phase of the trial an expert who supported a smoking cessation plan that would cost hundreds of billions of dollars (all the better to extract a monetary settlement from the defendants, which has been the DOJ's only goal here all along) but which served to remedy past misdeeds by helping smokers quit who were supposedly tricked by the defendants' past misconduct into becoming cigarette addicts.

Finally, at the last minute, someone at DOJ (one of the adults, one presumes) realized that this remedy was absolutely not permitted under the CA decision, so they forced the trial team to scale the requested remedies back to only cover a cessation program for people who start smoking in the future as a result of any future misconduct by the defendants. That is the only kind of remedy even arguably permitted by the CA decision, and DOJ's last minute decision to reduce its claim to attempt to conform to the CA's requirements demonstrates only that someone at DOJ finally woke up and smelled the coffee.

Further deponent sayeth not.
6.16.2005 12:54pm
John Jenkins (mail):

I think I have a more cynical take. The long-term career attorneys at DOJ, like most career federal employees are Democrats or lean that way. The Republican administration's appointed attorneys didn't like the litigation or its consequences but for political reasons could not pull the plug, so they did the next best thing and reduced the penalties for which the government is asking. The career attorneys don't like that and because they harbor ill will toward the administration, the career attorneys leaked the internal information to harm the administration politically.

One question is whether this office of professional responsibility pursue the leakers who have clearly violated their professional duty of confidentiality. What about the state bars before which they are admitted to practice? Irrespective of the merits of their position, they violated their duty and should be subject to discipline.
6.16.2005 1:52pm
Backseat Driving (mail) (www):
The elephant in the room here is that MacCallum's old firm represented (represents?) one of the opposing parties. While that's discussed in the links, it deserves a central role in the discussion here.
6.16.2005 2:07pm
A Blogger:
Backseat Driving:

Isn't that a red herring? Big firms represent lots of big corporate clients, and big corporate clients are often engaged in litigation against the government. Government attorneys who once worked for big firms will have worked for big firms that represented lots of big corporate clients engaged in litigation against the government. What is unusual about it here?
6.16.2005 2:13pm
aslanfan (mail):
This June 15 letter to the WashPost editor, from a career DOJ atty on the case from the outset, is illuminating:

Wednesday, June 15, 2005; Page A24
A June 10 editorial said that the Justice Department's decision to reduce from $130 billion to $10 billion the amount it sought from the major tobacco companies in its fraud case "appears to be the result of political pressure." It also came to the offensive and unfounded conclusion that the change was not based on the "legal merits" of the case as assessed by "career lawyers."

I am a senior member of the Justice Department section involved with enforcement of racketeering laws. In 1998 the office of Attorney General Janet Reno asked whether it would be appropriate to bring civil racketeering claims against the tobacco industry for defrauding the public. I recommended that such a lawsuit be brought, and I have been a member of the case's trial team ever since.

At the trial, Michael C. Fiore testified that a smoking-cessation program that would enable smokers who wished to quit to do so would cost $130 billion and take 25 years. However, the legal requirements that the appeals court established for the case said specifically that any remedy must be limited to addressing future violations of the law by the tobacco companies and may not seek to address the injuries caused by their past fraudulent conduct.

I was concerned that a reviewing court might conclude that Dr. Fiore's proposal would not satisfy that standard, so I recommended that the department present to the court a modified program designed to comply with the appeals court's decision. My recommendation was adopted.

With respect to the editorial's allegation that witnesses were asked to soften their testimony, I was concerned that some witnesses were seeking to propose remedies that would violate the Constitution and laws and that the Justice Department could not endorse such proposals. As a result, the department determined that the witnesses it put on the stand had to include in their testimony a statement that they spoke only for themselves and not for the department -- as they then did.

Both my parents died of smoking-related illnesses, and I yield to no one in my desire to devise remedies to help addicted people stop smoking. However, as a public official and an officer of the court, my actions must comport with the rule of law. My actions and those of other career prosecutors involved in this case have done just that.

The writer is senior litigation counsel in the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department.
6.16.2005 2:17pm
Correct me if I'm wrong, but wasn't the case actually started by DOJ political appointees (Clinton's, rather than Bush's) in the first place?
6.16.2005 2:23pm
John Steele (mail) (www):
Did McCallum himself work for the tobacco company or otherwise learn its confidences in the same or substantially related matter? If not, I don't see the conflicts issue. Check out Model Rules 1.9 and 1.10. The fact that someone else at his prior firm might be conflicted from acting as a prosecutor against that tobacco company is not necessarily the same as McCallum being conflicted.

What is the appellate decision that supposedly limits the recovery? Does anyone have that cite?
6.16.2005 2:24pm
DBL (mail):
According to what I read in the papers, McCallum never did any work for any tobacco company but his firm did some patent work for RJ Reynolds.

The NY Times today describes Frank Marine (whose letter to the WashPo is reprinted up above) as a junior lawyer on the trial team. Having read Mr. Marine's letter now, it's safe to say that the NYT's characterization both of his place in the trial team, and of his role in bringing the requested remedies into line with the Court of Appeals's ruling, was seriously misleading.
6.16.2005 2:46pm
John Steele (mail) (www):
DBL: Thanks. If that's the case, it's not even remotely close to being an ethical conflict. Unfortunately, those allegations get tossed around freely even when there's no issue.
6.16.2005 3:10pm
A Country Lawyer (mail):
The cite for the decision of the Court of Appeals is: United States v. Philip Morris USA, 396 F. 3d 1190 (D.C. Cir. 2005).

The MSM in its coverage of this has also conveniently omitted the fact that DOJ trial team did not have a response when the DC Judge asked them how their expert's proposed $130 billion smoking cessation plan comported with the CA's requirement that remedies be directed at preventing future fraud. I suspect it was that Q&A, and the realization that the Government could end up with a big, fat zero after spending over $120 million of taxpayer funds on this case, that prompted the DOJ to try to recast their proposed remedy into something that at least gave a nod to the CA's decision.
6.16.2005 3:31pm
quick question:
Does anyone have any idea why the leak to the NY Times doesn't result in waiver of the privilege? See also Mr. Marine's letter to the Post ("I was concerned that a reviewing court might conclude that Dr. Fiore's proposal would not satisfy that standard, so I recommended that the department present to the court a modified program designed to comply with the appeals court's decision"); ("As a result, the department determined that the witnesses it put on the stand had to include in their testimony a statement . . . ."). How in the world is all of this not disclosure of work product?

Is there some special rule applicable to DOJ RICO cases about which I'm not familar? Not a rhetoric question, but this just seems obvious to me so I'm wondering if I'm missing something equally as obvious.

6.16.2005 3:50pm
John Steele (mail) (www):
Quick Question: My guess is that Marine's letter was authorized through proper channels, and was approved because the DOJ wanted to react to the negative press stories. I am also guessing that the original leaks were not authorized.
6.16.2005 4:02pm
Backseat Driving (mail) (www):
Apparently it needs further clarification: the issue isn't whether ethics rule bar MacCallum from working on the case, but whether he purposefully acted against the interest of his present client in order to benefit the client of his former law firm, where it would not be surprising to find MacCallum himself in several years. Maybe that firm will see a substantial increase in business from RJR.

The actions MacCallum took don't prove the above, but they seem suspicious.
6.16.2005 4:15pm
Robert Schwartz (mail):
I am very perturbed by the spectacle of Federal employees leaking documents in this and other cases in order to (take your pick) get back at Supervisors, damage the Administration, thwart rival bureaucrats, or otherwise advance intrests other than doing their jobs. The Washington press corps, which lives off of these creatures, of couse, applauds the as heros.

I think their position is unethical. In a private business, they would be fired, and justly so, in a heartbeat. If they really believe that the conduct of their superiors is illegal, they should forward the material to the Attorney General. If he does not pursue the matter, and they feel that it needs to go public, they need to resign first and identify themsleves and their reasons for coming forth.

The Washington press corps to the contrary notwithstanding, the President and Congress are the elected representatives of the American People. It is they who should make the policy decisions, not an unelected, unaccountable and annonymous bureaucracy.

This snipping from behind bushes is just plain creepy and unethical, and it must be stopped.
6.16.2005 4:22pm
And I return to my original question: Why aren't these disclosures waiver of privilege as to the remedy? If I were Big Tobacco's laywers (and I'm not), based on the leaks and Mr. Marine's letter, I'd be trying to get every single internal DOJ document that references remedy. As as my initial question alluded to, I see no *legal* reason why they should not get those documents and those documents would be awfully helpful for arguing down the size of the remedy.

Mr. Steele, thank you for your answer but even if approved by superiors--and this is an oversimplification--but even then, voluntary partial disclosure of work-product as to a subject could result in waiver of the privilege as to every document related to that subject.
6.16.2005 4:42pm
John Steele (mail) (www):
Backseat Driving: Among other problems, that line of reasoning would essentially prevent the DOJ from hiring out of large law firms and would break new ground by recognizing a conflict based upon an incredibly attenuated chain of inferences on inferences. Of course, if you had direct proof that that's what happened, then by all means there should be severe consequences. But (as is almost certainly true) if all you have is that chain of "if's" then you don't have anything.

Leaking: If the original leaks were unauthorized and promptly denounced by the DOJ, it's not clear the court would recognize a true waiver. In most jurisdictions there is quite a bit of discretion to declare an unauthorized breach inadequate to permit further discovery. If the Marine letter was authorized, the court would decide the scope of any waiver under a rubric of "fairness" and could severely limit if not outright foreclose discovery on the issue.
6.16.2005 4:52pm
Backseat Driving (mail) (www):
John Steele: the facts of this case suggest, but do not prove, an intent by MacCallum to harm his current client in order to better MacCallum's career prospects (or to do favors for friends). If additional facts prove this concept, then his acts are unquestionably unethical.

You raise a "slippery-slope" argument that this suggestion will bar any corporate lawyers from government service. I suggest you consult with Eugene Volokh - egregious circumstances such as these don't lend themselves to a plausible slippery slope.
6.16.2005 6:04pm
I think this case is an excellent example of the way government lawyers sometimes slide into being "above the law" of the ethics rules of their state bars. It's not a deliberate attitude; it's the pervasive influence on an attorney of representing the single biggest, most powerful client in the world that eventually encourages a lawyer to believe that he can do anything he likes "in the interest of justice" or "for the public good." Consequently, lawyers are leaking documents to snub superiors (which leaks actually hurt the client), and writing commentary on their own work product in currently active cases in the media (which certainly can't help the client, and consequently is not in the client's best interest). These are, first and foremost, ethical violations of the HIGHEST ORDER, despite the fact that "the client" can't come to your office and scream at you, and likely won't be reporting you to the local bar association. And therein lies the rub. Government lawyers behave the way they do because state bar associations pay very little attention to their behavior, and there isn't anyone watching to make sure government lawyers behave in "the client's" interest. This is not the first time I have considered this to be one of the most shameful ethical oversights in the legal profession. When a government lawyer's behavior hurts "the client," that lawyer has violated an ultimate trust -- that of the millions of people who make up "the client" and expected him to be a lawyer first, and a crusader on his own time.
6.16.2005 6:09pm
Neo (mail):
Let me state upfront that if the tobacco industry closed shop tomorrow, I would not shed one tear. Now that said ..

This "cash cow" can only be milked so much. The last time we had the threat of a major ruling against the tobacco industry, the states, really just accomplices, started to make plans ton how they would continue to get their payments if bankrupcy were declared. The economic leeches out there seem to think these guys have endless money, but in fact all the money comes from saps who continue to smoke.
Perhaps the $120 billion should be put back in the federal prize, so the tobacco companies can go under. Better yet, let's make it $400 billion to make sure the states have nothing left, no it should be $980 billion and the states, really just accomplices, should be made to pay part of it.
6.16.2005 6:13pm
A Country Lawyer (mail):
Backseat - Why do the facts of this case suggest an intent to harm his current client for the benefit of a future one? Couldn't you say that about any Government lawyer - he could sell out the Government and then take a position with some law firm that represents companies that are in litigation with the Government? After all, no lawyer is required to return to his former employer after leaving the Government. Many go to different firms or companies. Why would you assume that McCallum would return to his old firm? It is precisely because of these uncertainties that no one has ever in the history of the Republic thought that it was improper for a government lawyer to advise the government about a litigation involving a minor client of the lawyer's former firm whom that lawyer had never represented.

This brouhaha is just politics. Judged on the merits, McCallum did nothing wrong, and the DOJ did what it had to do in order to have any hope of not getting shut out completely by the trial judge.
6.16.2005 6:20pm
From what I hear (all rumors) this is only the latest in a string of frustrations the career attorneys have had with the appointees. I agree with the poster above who noted the political split between career and appointees, but I think the current frustrations go beyond politics, and also did not occur to this extent under Reagan or Bush I.
6.17.2005 12:38am
Tyrone Slothrop (mail) (www):

I guess I find it curious that some of the posters above see a decision made by senior political appointees at DOJ as legitimate and (implicitly) a decision made by career prosecutors as less legitimate. The views of the career prosecutors presumably are actually informed by the facts and law of the case. The views of the political appointees, presumably, are driven less by a grounding of specific learning about the case and more by an ideological or political view about the proper relationship between the government and the tobacco industry. I trust the former more. And while I suspect that it is correct that the career lawyers are more likely to be Democrats than their bosses are, please: we're talking about career federal prosecutors.
6.17.2005 1:29am
A Country Lawyer (mail):

1) The decision to bring this case was purely political. You don't think that a bunch of career lawyers sat around and said, "Let's bring an unprecedented massive case against the tobacco companies based on really weak legal theories." No, the Clinton DOJ saw an opportunity (a) to attack companies that provided financial support for the Republicans and (b) to extract vast sums in settlement, as the States had just accomplished with their medicare reimbursement suits. Why the complaints about politics now? Did you complain about the politics involved in bringing this case?

2) In any event, the career lawyers on the trial team disagreed about how to proceed at the end of the trial. Frank Marine, a senior career lawyer on the trial team, wrote to the WashPo (see above) that he urged the scaling back of remedies because the $130 billion smoking cessation plan failed to satisfy the requirements of the Court of Appeals decision on RICO remedies. Don't you think that the senior polical appointees have the responsibility to step in and make a decision in such circumstances. They, and the President, are ultimately responsible for the actions of the Department, not the career lawyers.
6.17.2005 11:07am
lralston (mail):
Does that article seem to be on the correct track?
6.19.2005 1:57pm