A prominent tobacco control announcement list has told thousands of anti-smoking advocates that Associate Attorney General Robert McCallum rescued the tobacco industry by reducing the Department of Justice's requested smoking cessation remedy from $130 billion to $10 billion and that McCallum lied in telling the American people that the change in the remedy was intended to bring the remedy more in line with the D.C. appellate court decision which ruled that remedies under RICO must be forwards-looking, not backwards-looking like the original $130 billion request.
The announcement sent to anti-smoking advocates stated: "Bush rewards DOJ lawyer [McCallum] for rescuing tobacco industry with a cushy ambassadorship."
The Rest of the Story
This announcement amounts to an accusation that McCallum has told the public a bald-faced lie. After all, McCallum stated publicly that he insisted on the change in the requested smoking cessation remedy in order to comply with the appellate court decision which disallowed backwards-looking remedies. If McCallum did rescue the tobacco industry with this change in the requested remedy, then he also lied to the American people.
This is quite a serious charge and it should only be made, especially to thousands of public health advocates, if it can be substantiated.
So far, the only investigation to look thoroughly into the situation was an investigation by the Office of Professional Responsibility at the DOJ which cleared McCallum of wrongdoing and concluded that he acted appropriately in intervening in the case and in seeking an alteration of the smoking cessation remedy.
There is not adequate documentation to support the accusation.
And this is serious business. A person's career is on the line and could be destroyed. This is not something to be taken lightly. But the anti-smoking movement doesn't seem to have any concern about documenting its political attacks before it makes them.
In fact, the Associated Press reported that "Sen. Richard Durbin, D-Ill., said he would no longer seek to block McCallum's nomination to be ambassador. Durbin has been 'reassured by OPR that Mr. McCallum was not engaged in improper political influence' in the tobacco case, the senator's spokesman said." In light of such a clear statement, it is difficult to see how a public health group could justify making a personal attack like this one.
Moreover, a careful analysis of the DOJ lawsuit reveals that the change in the requested remedy did not rescue Big Tobacco. If anything, it hurt Big Tobacco. As I explained in a series of posts last summer, the $130 billion remedy never had a chance of being upheld by the D.C. Court of Appeals, even if Judge Kessler were to find in the government's favor and order such a remedy. It is clearly a backwards-looking remedy and it clearly is not a permissible remedy under the RICO statute's civil remedies provisions as interpreted by the appellate court.
So how could altering a remedy that would never have been upheld rescue the tobacco industry?
The truth is that it didn't. If anything, one could make the argument that the change in remedy helped the government in the case, by preventing it from making a complete mockery of the case by demonstrating a failure to respond to the appeals court decision. The plain language of that decision should have made it obvious that the $130 billion remedy would never hold and the Department should have immediately altered the remedy, not waited until the final days of the trial.
Could it be, perhaps, that McCallum stepped in because he wanted to spare the DOJ the embarrassment of having its remedy overturned by an appeals court that would become aware that the Department had made no attempt to comply with its ruling? If anything, McCallum should have intervened earlier, because more time would have allowed DOJ to craft remedies that might have been both effective and allowable under the law. If anything, the alteration of the smoking cessation remedy strengthened the case a little (not much in my view, because even at $10 billion, I do not believe it is consistent with the RICO statute).
The amount of the requested smoking cessation remedy that will withstand appeal is $0. The remedy is simply not consistent with the law. So reducing a remedy that will end up at $0 from $130 billion to $10 billion has no practical effect on the case. It doesn't rescue the tobacco companies from anything.
This story is significant because I think it points to a second credibility crisis that the tobacco control movement is facing. In addition to a scientific crisis of credibility, the movement is also facing a crisis in terms of its ability to be trusted in its political statements. If anti-smoking groups are willing to make political attacks like this one without sufficient documentation, then we are going to end up losing our credibility. Even when we are right about a particular event being a true example of politicians catering to Big Tobacco, the public will not trust us.
This is particularly important because we are the ones who are often criticizing tobacco companies for making unsubstantiated claims. We shouldn't be making unsubstantiated claims of our own.