Friday, June 10, 2005

IN MY VIEW: Don't Be Hasty in Accusations of Political Interference in DOJ Case

Accusing the Administration and high-ranking DOJ officials of political interference certainly makes a nice story, but I think anti-smoking groups should be careful before jumping to conclusions about the reasons for the DOJ's reduction from $130 billion to $10 billion in the amount requested for a national smoking cessation program it proposes as a remedy should it prevail in the RICO-based lawsuit against the tobacco companies.

First, there is as yet no evidence that political interference indeed was the reason for the abrupt change in legal strategy. I think we in public health need to be more careful and to have better documentation before we make the kind of definitive accusatory statements that some anti-smoking groups have made.

For example, today's Campaign for Tobacco-Free Kids press release proclaims that: "Due to apparent political interference in this case, the Justice Department is now seeking a remedy that protects tobacco industry profits rather than public health." This is not suggesting a possibility of political interference, it is making a conclusion of such interference, and I don't think such a definitive conclusion is appropriate or warranted at this time.

Second, it makes no sense for the Administration or senior DOJ officials to intervene on behalf of the tobacco companies by demanding that the lawyers prosecuting the case present a more narrowly tailored remedy that has a greater chance of passing muster with the D.C. Court of Appeals. If anything, the Administration and senior DOJ officials could have hurt the case the most by allowing the statutorily unjustified request (at least in the view of the appellate court) to stand.

Asking for a $130 billion program to treat existing smokers in light of an appellate court decision that a RICO remedy has to be "forward-looking" is guaranteed to produce as a result a $0 billion program. Can it not be said that a program to treat existing smokers "is a quintessentially backward looking remedy focused on remedying the effects of past conduct to restore the status quo?" This is the exact language of the D.C. Court of Appeals decision against allowing disgorgement as a remedy. Under these constraints, a program to provide cessation services for existing smokers simply has no chance of prevailing, even if Judge Kessler were to ignore the appellate court ruling and issue such an order.

Third, the timing of the outrage of several anti-smoking groups is suspect. The groups appear to be outraged now when the dollar figure drops from $130 billion to $10 billion, representing a more reasonable remedy under the RICO statute, but they have been silent for the past few months, when the government has proposed a number of remedies that have little chance of satisfying the D.C. Court of Appeal's clearly stated criteria for an appropriate civil remedy under RICO. It certainly appears that money gets their attention, but that the strength of the case that DOJ presents (which is ultimately tied to the degree to which DOJ can provide a rationale to support its proposed remedies) is not the true issue at hand.

The text of the Campaign for Tobacco-Free Kids' (TFK) press release calls attention to the fact that it is missing the point of what the entire trial is about. The release begins by stating: "The smoking cessation remedy the U.S. Department of Justice described this week in its lawsuit against the tobacco companies is completely inadequate to help the nation’s 45 million smokers quit." Well, this case has nothing to do with how to help the nation's smokers to quit. This is not a public health summit to devise and require the tobacco companies to fund the most expensive interventions to help advance public health causes.

Instead, this is a trial to determine whether the tobacco companies violated the RICO statute, and if so, what remedies should be ordered specifically to prevent future RICO violations. The issue is not what anti-smoking groups want or think would be adequate to protect the public's health. The issue is what is necessary to prevent future RICO violations.

The TFK press release also states that the reduction in the request for the smoking cessation program is: "inconsistent with the powerful case the government has made that the tobacco companies engaged in a decades-long scheme to defraud the American public and market their deadly products to our children." But this misses the point. The case is being tried under a specific statute - RICO. The judge is not free to simply impose any penalty that she feels would fit the crime. The nature of the allowable penalties is specified under section 1964(a) of the statute.

Most concerning is the release's statement that: "The government’s current plan is a betrayal of the nation’s 45 million smokers because most of them will not get the help they need in breaking their deadly addiction." This statement implies that there exists some sort of government responsibility to use this lawsuit to provide all the smokers in the nation with cessation support and to do so even if the law does not support that. There is no betrayal going on because the government decides to propose a forward-looking remedy that would appropriately offer smoking cessation services to newly-addicted smokers.

Finally, when TFK calls for the government to seek as a remedy: "the establishment of well-funded, sustained, nationwide programs to prevent kids from smoking and help smokers quit," it suggests that statutory support for TFK's demands is irrelevant.

The Campaign for Tobacco-Free Kids appears to be treating this legal case as one big public relations opportunity and as a huge opportunity to achieve major funding victories for public health programs. But that is not what the case is about. It is about achieving justice under the law. Under the law.

Just because this cause is a noble one does not obviate the need for the judicial system to carry out its function in an appropriate way. If TFK really wanted to improve the chances of a meaningful verdict against the companies, it should have helped the Department over the past two months to craft more narrowly-tailored remedies that would have had a chance of being upheld by the courts. The outrage of the past few days seems to me to be blowing a lot of smoke and making a lot of as-yet unfounded accusations, but it is unfortunately not going to do much of anything to help achieve justice for the public in light of the fraudulent activities of the tobacco industry over the past half a century.

Why do I suggest that money seems to be the most apparent factor influencing the actions of some public health groups? Because the amount requested by the DOJ, although it represents only $10 billion initially for the first five years, could increase if the tobacco companies' violations of RICO continue such that under the proposed remedy, the need for further smoking cessation support is triggered. Judge Kessler can even take the evidence into her own hands and make her own decision about the reasonable costs of an appropriate program and award any amount she wants. It could theoretically exceed the $130 billion suggested earlier (obviously, that is unlikely). The point is, what appears to be getting attention is the amount of the money, not the appropriateness of the remedy and its chances to actually occur.

Now, before readers ask the question, let me address the clear evidence that the decision to change the requested remedy was thrust upon the trial lawyers from above. That seems clear. But that doesn't imply that it was a politically-motivated decision. It still could well have been a strategic decision, one based on an upper-level judgment that a remedy that is more consistent with the D.C. Court of Appeals' decision has a better chance of being upheld. Again, being familiar with the legal issues in the case, it just doesn't make sense for the Administration to intervene in this way as a means of "protecting" the tobacco companies from financial harm. The D.C. Court of Appeals has already done that.

One nuance that should be mentioned is the possibility that the disagreement between the approach that the trial lawyers wanted to take and senior officials wanted to take really stemmed over the ultimate strategy of the government. If DOJ ultimately plans to challenge the Appeals Court decision to the Supreme Court in the hope that the Court will allow disgorgement and other backwards-looking remedies, then it would make sense to ask for the most far-reaching remedies now, even if they are inconsistent with the appellate court decision. But if a decision were made (or anticipated) that the case would not be appealed, then it would only make sense to propose remedies that fit the outlines of the appellate court decision. Is it possible, then, that it was made clear to senior DOJ officials in the last few days that this case would not be appealed, and that such a communication could have altered the trial plan?

Perhaps the most insightful comment I have seen about the $120 billion saga is one written by "tobacco observer" in response to Gene Borio's post about yesterday's DOJ case events: "Now I agree that it is actually quite probable that someone higher up in the DOJ mandated this last minute change. But that’s probably because someone higher up and less close to the case could see the obvious. . .that the $130 billion request was absurd, has nothing whatever to do with RICO violations, and is exactly the same kind of thing that the DCCA said wasn’t allowed. Whomever made the decision probably realized that there was going to be no settlement negotiations, and was sick-and-tired of watching the gov’t get slapped around every single day in the courtroom on impermissible remedies, so they mandated this change as a tactical one (not a political one). In terms of strategy. . .I also agree with you. This was a BAD move for the gov’t. They should have done this about four months ago, right after the DCCA ruling. Doing it now was too little, too late."

If The Rest of the Story has been contributing anything to the tobacco debates, I hope it is that we must be more careful in being able to justify our actions and our proposed policies, and not simply rest on the notion that because our cause is a great one, anything we do that improves the public's health is justified and appropriate. This may be the grandest example yet of why ignoring these concerns may end up doing a lot more harm than good in the long run.


Anonymous said...

Initially, I was outraged to discover that the DOJ reduced its demand to $10 billion over 5 years in the closing moments of the lawsuit. Although not yet proven, I would not be surprised if at least in part this decision was politically motivated by Bush appointees to the DOJ. Nonetheless, your points are well taken. Certain constituencies are hoping to fund the national tobacco control program that the MSA should have funded except they were tricked by the Attorneys General and the Tobacco Industry into backing a bad settlement. Some organizations look at the DOJ lawsuit as a potential cash cow to protect their survival over the next 25 years. You're right this is not what the lawsuit is about. The higher court has ruled that the proposed remedies under RICO must be forward-looking.

It is the Legislature's responsibility to legislate not the Judicial branch. If we are to solve our nation's greatest public health problem (i.e. tobacco use), the Congress must be emboldened to pass legislation that phases the Tobacco Industry out of business. Unfortunately, the Congress has become increasingly anti-public (including anti-public health). We the people must demand more from the institutions designed to serve us and not the special interests.

norbert hirschhorn said...

The appelate decision on disgorgement was not unanimous, and with one judge different the court would have allowed the $280B claim. It suggests to this legal layman that the DOJ decision to cut back the remedy had less to do with how they thought SC would act based on any obvious reading of the RICO law, than with how this particular SC would rule.