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.
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):
- More on DOJ Anti-Tobacco Case:
- Leaks in DOJ Tobacco Case:
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.
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.
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?
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.
FRANK J. MARINE
Washington
The writer is senior litigation counsel in the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department.
What is the appellate decision that supposedly limits the recovery? Does anyone have that cite?
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.
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.
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.
Thanks
The actions MacCallum took don't prove the above, but they seem suspicious.
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.
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.
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.
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.
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.
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.
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.
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.
Does that article seem to be on the correct track?