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.

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