According to a New York Times article published today, there was a vigorous battle between lawyers prosecuting the DOJ case and their superiors over the nature of the proposed smoking cessation remedy. According to the article, most of the career lawyers, with the exception of Frank Marine, were adamant about requesting a $130 billion smoking cessation program that would cover all current smokers. In contrast, Associate Attorney General Robert McCallum insisted upon a $10 billion program that would only cover future smokers (i.e., newly addicted smokers in the future, after the court's decision in the case).
The article reports that McCallum essentially took the case into his own hands, and forced the DOJ trial lawyers to request the $10 billion remedy. He may also have played a role in writing the closing arguments in the case. Further, there is a suggestion that he may now be giving more of a leading role to Marine, and pushing the other trial lawyers more into the background. In particular, Marine may be asked to write the proposed order on penalties. The other trial lawyers were quite upset about being forced to change their approach, felt the case would be greatly weakened if not destroyed, and warned about allegations of political interference.
Perhaps most interesting is that the trial lawyers (with the exception of Marine) apparently felt that there was no legal basis for the change in remedy.
The Rest of the Story
Although some anti-smoking advocates are using this article as "proof" that it was Bush administration political interference that led to the change in smoking cessation remedy, the article does not really add much evidence to that argument. After all, while it is now eminently clear that there was a vehement disagreement on the remedy between most of the trial lawyers and the Associate Attorney General, the article still does not demonstrate what the reasoning was that led senior DOJ officials to insist on a $10 billion forward-looking remedy, rather than a $130 billion backwards-looking remedy.
One possibility that still remains is that the change was due to the fact that the $130 billion remedy was backwards-looking while the $10 billion remedy was forwards-looking, and the D.C. Court of Appeals had ruled that forward-looking, but not backwards-looking remedies were allowable under the RICO statute. It would only make sense, from both a legal and tactical standpoint, to propose a remedy that was consistent with the appellate court decision rather than one that was inconsistent with that decision.
Another possibility is that the Bush administration is committed to sabotaging the case and that it interfered in order to protect tobacco industry profits.
I don't know which possibility represents the truth, but the point is that if I were a public health organization receiving donations from people expressly for the purpose of conquering heart disease, lung disease, cancer, or even smoking, I would not use that money to make definitive charges of political interference unless I had more information. That is all I am saying - nothing more and nothing less.
The most telling information from the article, however, is the extent to which the trial lawyers appear to be completely oblivious to the appellate court's decision. Their apparent failure to appreciate any legal basis for the suggested change from a backwards- to a forward-looking remedy is puzzling, given the clarity of the D.C. Appeals Court's ruling.
While the interference of Associate Attorney General Robert McCallum in the case is disturbing, I cannot think of what else senior DOJ officials could have done to ensure that there was at least some chance of obtaining a smoking cessation remedy.
What I'm also puzzled about is why many public health groups seem to think that the $130 billion remedy was so critical to the case, given that it is widely agreed that such a remedy would never have been upheld. What great victory can possibly come from winning the case but having your remedies overturned? Wouldn't it represent a greater victory to win the case and come away with remedies that are upheld?
The only way I can make sense out of all of this is to posit that the DOJ trial lawyers were convinced of their legal reasoning, that they were committed to appealing the suit to the Supreme Court, and they felt that the Supreme Court would overrule the appellate court, thus paving the way for a substantial set of financial remedies, including the $130 billion, and perhaps a disgorgement remedy as well.
The only flaw in this thinking is that the trial lawyers, in the memo obtained by the Times, apparently argued that the $130 billion smoking cessation plan for current smokers was "in keeping with the appellate court's 'forward looking' approach."
I simply don't understand this. I wrote back on April 20, before any of this broke wide open, that a smoking cessation remedy for current smokers would be inconsistent with section 1964(a) of the RICO statute because it was clearly a backwards-looking remedy.
Here is what I posted on April 20: "I do not think that forcing the companies to fund smoking cessation programs for smokers is consistent with section 1964(a), nor is it likely to be upheld by the Appeals Court. I do not see how funding a smoking cessation program has anything to do with changing tobacco company conduct with regard to the alleged RICO violations. Such a remedy appears to be aimed at 'remedying the effects of past conduct to restore the status quo,' exactly what the Appeals Court ruled was not permissible under RICO."
And on May 23, exactly one week before the memo in which DOJ lawyers were discussing the nature of this remedy, I wrote: "While a national smoking cessation program would be of great public health benefit, I do not think that forcing the companies to fund smoking cessation programs is consistent with section 18 U.S.C. section 1964(a) (the civil remedies provision of the RICO statute) and is therefore not likely to be upheld by the Appeals Court. I do not see how funding a smoking cessation program has anything to do with changing tobacco company conduct with regard to the alleged RICO violations. Such a remedy appears to be aimed at 'remedying the effects of past conduct to restore the status quo,' exactly what the Appeals Court ruled was not permissible under RICO. It's not clear to me how forcing the companies to fund smoking cessation would help prevent and restrain future RICO violations."
So I don't see it as a mystery that a smoking cessation remedy for current smokers might just be viewed as inconsistent with the law (as interpreted by the appellate court). How the trial lawyers could fail to see any legal basis for suggesting that such a remedy was not appropriate under the appellate court's decision is, however, a mystery to me.