In a column that appears today on FindLaw's legal commentary site, Brooklyn Law School Professor Anthony J. Sebok presents evidence to support his opinion that political interference was not the explanation for the Justice Department's sudden change in the nature of legal remedies they told Judge Kessler they are seeking. This contrasts with the charge of some anti-smoking groups, including the Campaign for Tobacco-Free Kids, that political interference is "apparent."
Instead, Sebok argues that the decision was a purely tactical one: it was made in order to bring the requested remedy more in line with the D.C. Court of Appeals ruling that forward-looking remedies are the only ones that are allowable under the RICO statute. Since a smoking cessation program for current smokers is clearly intended to redress past wrongs of the industry, Sebok argues, it had no chance of being upheld by the appellate court.
Sebok argues: "I think the reality is that the government's lawyers realized that the February Court of Appeals decision was much more devastating to their case than they admitted at the time. More specifically, they realized that it took away virtually any remedy they could seek. So they did their best to preserve what they hoped they could get: A finding of wrongdoing, and liability. In my view, the Court of Appeals clearly implied that remedies designed to address future effects of past violations were not acceptable. Only remedies designed to prevent future violations were acceptable. But did the remedies DOJ sought really fall into this category of acceptable remedies? It seems the answer is no. A smoking cessation program addresses the effect of a past violation - rather than preventing a future violation. The violation occurred when the smoker, as a result of fraud, was initially hooked. The effects continue, but the violation does not - unless one believes that current advertising is also fraudulent, and is convincing smokers not to quit. So this kind of remedy is just the kind the Court of Appeals suggested could not be granted."
The Rest of the Story
I simply don't find any clear evidence that the Bush Administration politically interfered in the DOJ case by demanding that the amount of the smoking cessation remedy be reduced from $130 to $10 billion. Moreover, I do not see any reasonable rationale for such alleged interference, since it is widely apparent that the $130 billion proposed program has no chance of being upheld by the D.C. Court of Appeals, even if Judge Kessler were to ignore the appellate court's decision and impose such a remedy.
Sebok's column adds further support for my suggestion that public health groups should not be hasty in making definitive claims that political interference was responsible for the events of last week. In fact, I think it is rather irresponsible of groups like the Campaign for Tobacco-Free Kids to be making such claims in such a definitive manner without any documented evidence to support their attack. For a group that spends so much time groaning about the damage that can be done by unsubstantiated claims, one would think that the Campaign would be a little more careful before bombarding the media with what I view to be a not only undocumented, but also irrational claim that a more narrowly-tailored remedy most certainly can represent nothing but political interference by the Bush administration to protect the tobacco companies (this, in light of the fact that the administration could have quashed the entire case at any point in the past five years).
Several Congresspersons as well as Public Citizen have demanded an investigation into possible political interference in the DOJ case. This is perfectly reasonable. But it undermines those investigations, and renders them meaningless, to draw conclusions about the facts before we have them. Once the findings are released, then if they support the Campaign's conclusions, it would be appropriate for the Campaign to to express outrage at the findings. But let's not express outrage at findings that don't yet exist.
If the Campaign truly believes that the evidence is sufficient to make a definitive accusation of political interference (and if it doesn't, then it should retract that accusation), then why isn't the Campaign blasting Congressman Waxman and others for calling for an investigation into an allegation that is apparently already known to be true? Why waste the taxpayers' money on this investigation if we already know the answer?
The Campaign is blowing smoke yet again, but doing nothing to actually help improve the possibility of justice being achieved for the industry's RICO violations over the past half a century.