Wednesday, June 15, 2005

Statement by Senior DOJ Attorney Involved in Tobacco Suit Casts Doubt on Anti-Smoking Groups' Claims of Political Interference

A letter to the editor in today's Washington Post written by a senior DOJ attorney involved in the tobacco lawsuit asserts, in no uncertain terms, that the decision to change the proposed smoking cessation remedy was based on legal and strategic concerns, not due to political interference from the Bush Administration.

The letter was written by Frank J. Marine, senior litigation counsel in the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department, a senior member of the Justice Department section involved with enforcement of racketeering laws and a member of the tobacco case's trial team since the suit was filed. In the letter, Marine explains that it was his recommendation to modify the proposed smoking cessation remedy, and that his recommendation was based on a concern that the original remedy suggested by the Justice Department was not consistent with the D.C. Circuit Court of Appeals' decision regarding allowable remedies.

Marine writes that "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."

In closing, Marine added "
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."

The Rest of the Story

This is a clear statement by a senior DOJ attorney who has been involved in the tobacco lawsuit from its inception. He takes personal responsibility for the recommendation to alter the proposed smoking cessation remedy and denies that there was any political interference. Instead, he asserts what The Rest of the Story has emphasized for months: that the actions of the prosecutors in the case must comply with the rule of law.

In light of this clear statement, I think that it is time for the four organizations which made a definitive accusation that the change in requested smoking cessation remedy was due to political intererence by the Bush administration -- the Campaign for Tobacco-Free Kids, American Cancer Society, American Lung Association, and American Heart Association -- retract their accusation and issue a revised statement indicating that the facts need to be gathered before a definitive accusation is made by these public health groups.

Why is it that I believe that reasonably strong evidence is required before these public health groups make a definitive accusation? To understand my reasoning, consider the differences between a public health organization and a political organization.

A political organization is designed for the express purpose of making political attacks. And more importantly, contributors to that organization understand that their money may be used for such attacks. For example, contributors to understand that the organization is going to use those funds to attack President Bush for his policy on Iraq. Such an attack is essential to the underlying purpose of the organization.

But contributors to the American Lung Association, American Heart Association, and American Cancer Society expect that their money is going to be used to fight lung disease, heart disease, and cancer. They are not giving money with the purpose of attacking the president. Unless, of course, there is evidence that the president is obstructing policy that could advance these causes. But the level of evidence that is required before Bush bashing is justified by these public health organizations is far greater than that required for Bush bashing by a political organization whose understood purpose is to criticize the president's policies.

As of today, President Bush has allowed the DOJ tobacco lawsuit to go forward and there is no solid evidence that he has interfered in the case; there is certainly no strong evidence that he intervened by forcing DOJ to alter its smoking cessation remedy. A suspicion or speculation that Bush is going to destroy the case is not sufficient grounds, in my opinion, for these organizations to use contributors' money to bash Bush.

If I had contributed money to the American Cancer Society, I would not be giving the money with any expectation that it would be used to bash Bush, unless that bashing were justified based on some reasonable evidence of wrongdoing related to cancer policy. In this case, it is little more than speculation that Bush interfered by requiring DOJ to change its smoking cessation remedy. I do not think that rises to the level of the organization using my money to bash the president. It is supposed to be a public health, not a political, organization.

Why do I say that the accusation that Bush interfered is speculation, rather than based on reasonable evidence? Well, let's analyze the evidence that has been presented so far to justify the Bush bashing:

1. The key piece of "evidence" so far is that some DOJ lawyers told reporters that higher-ups forced them to change the smoking cessation remedy. A New York Times article today describes a memo in which career DOJ lawyers vehemently argued with senior officials in the Department to defend the $130 billion request. The altered remedy was apparently forced upon the career lawyers, despite their objections. Does this demonstrate that Bush and/or his political appointee - Assistant Attorney General Robert McCallum - interfered for political reasons? Well, there is another plausible explanation for this: namely, that higher-ups intervened for legal reasons - so that the proposed remedy would be consistent with the law. In fact, this is what they have explained publicly, both in McCallum's USA Today piece and in today's New York Times article, which states: "
A spokesman for the department, Kevin Madden, said political considerations were never factored into the decision to reduce the penalty. 'This was a decision that was made on the merits of the case and that strictly followed the law,' Mr. Madden said. In light of the appellate court ruling, he said, 'a decision was made by the department that the best argument for the government to make was one that would preserve credibility in the government's case with the trial judge, would result in a favorable decision from the trial judge and would result in a trial court decision sustainable upon appeal.'"

So to conclude that the reason was political versus legal and strategic is just speculation. A strong argument could be made in the other direction. And, in fact, the Department has now unequivocally stated, via three sources commenting in widely-circulated publications, that any interference by higher-ups was done for legal reasons.

Given that the trial lawyers were so far off base with respect to their feeling that a $130 billion backwards-looking smoking cessation remedy would be upheld, it is no wonder that there may have been vigorous disagreement between senior officials and the trial lawyers prosecuting the case. But there still is no evidence that it was political, rather than legal concerns that prompted the order to change the remedy.

2. A second, weaker piece of evidence, is that DOJ is going against the recommended remedy of its own expert witness. But this is not evidence of political interference because expert witnesses are not presenting legal arguments. It is up to the lawyers in the case to make the legal decisions. And the purpose of the witnesses is to provide evidence that the lawyers can then use to support their legal arguments. Not the other way around. So there is nothing inappropriate about lawyers not asking the judge to follow everything that a witness said. I have testified in at least eight tobacco cases and in not one of them did the lawyers follow all of my recommendations in my testimony. Does that suggest that Bush interfered in each of those cases as well?

3. A third, even weaker piece of "evidence" is that Assistant Attorney General Robert McCallum previously worked for a law firm that represented R.J. Reynolds. It is not even clear to me that this represents a conflict of interest, since unless he himself represented R.J. Reynolds, why should that automatically disqualify him from involvement in the case? The Department investigated the potential conflict and cleared him. At any rate, let's stipulate that McCallum is in bed with R.J. Reynolds and wants nothing other than to destroy the lawsuit. Does that mean that the decision to change the smoking cessation remedy was politically motivated? If McCallum really wanted to destroy the case, why wouldn't he have forced his team to settle the case months ago, when negotiations were actually taking place? Or why would he ever have allowed the huge disgorgement remedy to go forward? He certainly didn't know in advance that the appeals court would overturn that remedy. Moreover, if he really wanted to kill the case, letting the $130 billion remedy go forwards would have been the best approach, since it absolutely has no chance of being upheld. The $10 billion remedy has at least some small chance, since it is forward-looking. So by intervening, McCallum just may have cost the industry $10 billion (they certainly would have paid $0 billion had he not intervened).

4. The fourth, and even weaker piece of "evidence" is that an earlier DOJ filing argued that the $130 billion remedy was not inconsistent with the appellate court ruling. That does not prove anything, because it is certainly possible that either: (1) the Department changed its thinking after having more time to mull over the appellate court decision; (2) the Department didn't change its thinking but realized that its chances of making a convincing argument to support its thinking were minimal; (3) that higher-ups forced the Department to change its argument because they felt sure that the $130 billion request was not consistent with the law; (4) that higher-ups forced the Department to change its argument because they felt sure that the $130 billion request would not fly, even if they felt it was consistent with the law; or (5) that the Bush Administration and/or senior DOJ officials decided not to pursue an appeal of the case to the Supreme Court and therefore decided (appropriately) to alter the strategy. I am not saying that any of these 5 possibilities are true. All I'm saying is that they are possible and not unreasonable. That means that concluding that 1 of the 6 possibilities is the correct one is speculation.

5. Finally, the fifth and weakest piece of "evidence" is that the Bush Administration is in bed with the tobacco industry and is going to do whatever it needs to do to protect industry profits. Let's even stipulate this is true. It still doesn't mean that the decision to change the smoking cessation remedy was politically motivated. Concluding that it was due to political interference rather than a reasonable legal, tactical decision is still speculation.

If anything, I would say that the evidence available to date suggests that the most likely reason for the change in the smoking cessation remedy is that it was done to comply with the appellate court decision regarding allowable remedies. I'll even grant that there may be evidence that the Bush Administration is going to kill the case before it hurts the industry. But believe me, they haven't done that yet. When they do that, you'll know about it.

Finally, I do think it changes the situation now that a career DOJ attorney has denied the political interference hypothesis. If DOJ were completely silent on the issue, then speculation might be all that the public health groups had to go on. There might be some additional weight provided to a decision to make a political attack without clear evidence of such. But now, the Department, on all levels, is denying political interference. The presumption really has to be that the decision was legal and/or strategic, or else anti-smoking organizations have to be prepared to defend themselves for making an accusation that Frank Marine is lying to the nation. A greater level of evidence is required to justify a public health group now making a definitive accusation of political interference in the case.

The rest of the story suggests that analyzing the available evidence, while a political attack against Bush for intervening in the DOJ case might be a justifiable use of contributors' dollars for a political organization (or certainly for individual advocates), it is not a justifiable or responsible use of contributors' dollars for a public health organization.

Right now, for the anti-smoking groups to be right, they not only have to invoke political interference on the part of the Bush Administration, but they now have to accuse two senior DOJ lawyers involved with the tobacco case of lying to the American people. One of those lawyers is a career lawyer, not a political appointee.

So if the anti-smoking groups are correct in their conclusions, then this is not just a political conspiracy among senior administration officials. It goes down to the level of career lawyers. Or else, it rises to the level at which the Bush Administration is forcing career lawyers to lie to the American people. Maybe the anti-smoking groups watched too much Deep Throat coverage.

One reason I am pursuing this story is that I think the integrity of these public health organizations is really at stake here. If they are using contributors' money for Bush bashing without sufficient evidence of present wrongdoing, then in the long run, they are going to lose credibility among their contributors. But worse, they are going to damage the integrity, sincerity, and character of the entire anti-smoking movement.

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