After the DOJ altered its proposed remedy request to the federal judge hearing the lawsuit against the tobacco companies, several Congressmembers and a number of anti-smoking groups accused McCallum of ethical wrongdoing in becoming involved in the lawsuit and forcing the change in the requested monetary remedy. One of these groups - Americans for Nonsmokers' Rights (ANR) - claimed that McCallum was a "former tobacco industry lawyer" and should therefore be charged with a formal ethics complaint for intervening in the tobacco lawsuit. McCallum, however, was apparently not a former tobacco industry lawyer; instead, he was a partner at a law firm that represented R.J. Reynolds.
According to the article: "Sen. Dick Durbin of Illinois said it was premature to place McCallum in a new position of trust as long as the Justice Department's Office of Professional Responsibility is conducting an ethics inquiry into the handling of the tobacco case. Any senator may place a hold on an executive branch nominee, an act that can be overcome with 60 votes."
"At the end of the tobacco trial last year, the Justice Department bypassed the position of one of its own witnesses and reduced the amount the Bush administration was seeking from the tobacco industry from $130 billion to $10 billion. At that time, McCallum, the No. 3 official at the department, defended the reduction against Democrats and anti-smoking groups who said the Bush administration had caved in to the tobacco lobby. McCallum said lowering the figure was dictated by a court ruling that went against the government."
The Rest of the Story
The problem with all of this is that there is no documentation that McCallum did anything wrong, either in participating in the lawsuit or in requesting a different smoking cessation remedy than was originally suggested. In fact, all of the information that seems to be available suggests that McCallum acted properly in seeking and obtaining clearance from the DOJ Ethics Office before participating in the case, and that the decision to request a more narrow remedy was based on an appellate court decision which precluded forward-looking remedies (which the $130 billion request was).
At the time, I criticized a number of anti-smoking groups for issuing a personal attack on McCallum without having proper documentation that any wrongdoing occurred or that the decision to seek an altered remedy was politically motivated, rather than a legal decision motivated by the appellate court's ruling. In fact, the day the news broke about the altered remedy, I opined that it was likely a strategic decision rather than a politically motivated one.
The truth is that the change in remedy did not weaken the DOJ's case at all. As it stood, the $130 billion requested remedy had zero chance of being ordered by Judge Kessler and upheld by the Appeals Court. It clearly represents a forwards-looking remedy that, in the judgment of the appellate court, is specifically not allowed by the RICO statute. If anything, the change in remedy strengthened the legal case somewhat because it is a narrower remedy that has at least some forwards-looking components (not that I think it has any chance of being upheld either, but it is better from a legal standpoint than the $130 billion request).
Thus, there are not very solid grounds for accusing McCallum of weakening the case.
Neither is there solid evidence to suggest that he committed any ethical wrongdoing. He apparently did not represent R.J. Reynolds in the past (in contrast to what was suggested to the public by ANR) and such a conflict of interest, if it existed, would actually have created a grievance on the part of R.J. Reynolds and the other tobacco company defendants.
The real concern is one of bias on his part. However, he did the appropriate thing which was to disclose the potential problem and seek clearance from the DOJ Ethics Office. Clearance was granted. Thus, I simply do not see any grounds for accusing McCallum of ethics violations.
Sure - an ethics investigation is not unreasonable under the circumstances just to make sure that there was no foul play. But the man should be presumed to be innocent until he is proven guilty or until there is something a little more solid than the completely undocumented accusations that are being made by Durbin and the anti-smoking groups.
The nomination should not be blocked on these weak grounds. As such, it certainly has the appearance that this action is purely politically motivated.
The rest of the story is that while the actions of Associate Attorney General Robert McCallum appear to have been motivated by legitimate legal concerns, the actions of his accusers and attackers (several Congressmembers and anti-smoking groups) appear to be motivated by political concerns and by a lack of understanding of the legal issues underlying the DOJ tobacco lawsuit.