In early June 2005, DOJ changed one of its requested remedies in the tobacco case from a $130 billion program that would provide smoking cessation services to all smokers who had allegedly been harmed by the tobacco defendant’s fraudulent conduct, and thus represents a backwards-looking remedy, to a $10 billion program that would focus on new smokers and determine the magnitude of the program based, in part, on future tobacco industry conduct, and thus represents somewhat of a forward-looking remedy.
Apparently, McCallum was instrumental in insisting that the trial lawyers alter the proposed remedy. While anti-smoking groups and the media focused on the reduction in the monetary amount of the remedy (from $130 billion to $10 billion), there was little attention paid to the more important alteration – a change in the nature of the remedy, from a backwards-looking one to a forwards-looking one.
Immediately after this change was announced, ANR attacked McCallum publicly, misleading the public by claiming that he was a “former tobacco industry lawyer” and accusing him of politically-motivated ethical misconduct. ANR even went so far as to argue that an ethics compliant should be filed against McCallum in the D.C. bar.
Joining ANR in an immediate attack on McCallum, the Campaign for Tobacco-Free Kids also accused McCallum of politically-motivated ethical misconduct, telling the public 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.”
On The Rest of the Story, which was in its early days at the time, I repeatedly cautioned the anti-smoking groups against making these premature and unfounded political attacks (see archives for June 2005), arguing that there simply was not sufficient evidence to support the contention that the change in the requested remedy was due to political concerns rather than legitimate concerns over the consistency of the remedy with the D.C. Appeals Court decision, which required that any remedy be forward-looking and not backwards-looking.
As early as the day on which the altered remedy was announced, I commented that it was simply too early to determine if this was a politically-motivated move or one that was based on strategic legal grounds (i.e., the need to fashion a remedy that was more consistent with the appellate court decision about allowable civil remedies under RICO).
Even after McCallum himself publicly stated that the change in the requested remedy was a necessary legal move, the anti-smoking groups refused to retract their political attacks. So now, not only were the anti-smoking groups accusing McCallum of politically-motivated ethical misconduct in the DOJ case, they were also accusing him of telling the American people a bald-faced lie.
I also repeatedly pointed out to ANR that their statement accusing McCallum of being a former tobacco industry lawyer was misleading, if not inaccurate, because McCallum had not ever represented a tobacco client. The truth was that he was a partner at a law firm that did some work for R.J. Reynolds. While I left open the possibility that a conflict of interest could have existed, I pointed out that any conflict would represent a grievance to R.J. Reynolds, not to the plaintiff, that there was no documentation to conclude that there was any wrongdoing, and that McCallum had taken the appropriate action by seeking and obtaining clearance from the DOJ Ethics Office prior to his involvement in the case.
In response, ANR defended, rather than retracting or correcting its misleading and less than truthful attack. And instead of clarifying and correcting its accusation, ANR went so far as to publicly call for a complaint to be filed with the D.C. bar: "not only is there good reason to state that Mr. McCallum has been a tobacco industry lawyer, but there is sufficient reason for the Department of Justice to investigate his role in this case, and for an ethics complaint to be filed with the Federal Bar."
In fact, it wasn’t until January 2006 that ANR apparently admitted its mistake in misleading the public by calling McCallum a former tobacco industry lawyer and changed its web site to reflect the fact that McCallum never in fact represented the tobacco companies in any litigation. While they apparently realized there was not good reason to state that Mr. McCallum has been a tobacco industry lawyer, they apparently did not realize that it was completely inappropriate to file an ethics complaint against a man for whom they could document absolutely no ethical wrongdoing.
Nevertheless, ANR continued to, and to this day continues to suggest to the public that there is a “cancer” on the DOJ and that “the Justice Department, led by political appointees with tobacco ties, is attempting to torpedo the case in its final hours.”
In perhaps my most detailed analysis of the McCallum issue, back in July 2005, I argued that “the facts as we have them now do not seem sufficient for anti-smoking groups to be attacking McCallum for ethics violations. We simply do not have the information that is required to make such determinations. There is no obvious or inherent conflict of interest and the determination rests on specific details of McCallum's involvement in the R.J. Reynolds work at Alston & Bird, as well as the nature of that work, that are not available to anti-smoking groups. Thus, I view it as premature, and therefore inappropriate, for these anti-smoking groups to be attacking McCallum at this point in time for ethical violations.”
On June 10, I warned that the Campaign for Tobacco-Free Kids was being hasty in its accusations of political interference on the part of McCallum, suggesting that the Campaign seemed preoccupied with the money that could result from the case and with its political and financial motivations, rather than with seriously helping to argue the case and trying to achieve justice allowable under the law. Nevertheless, the Campaign never backed off on its political attacks on McCallum and the Department, repeatedly telling the public that this was all an effort to derail the case in order to protect tobacco profits.
Now, the DOJ investigation into McCallum’s conduct has been completed and the investigation team has concluded that McCallum’s: “actions in seeking and directing changes in the remedies sought were not influenced by any political considerations, but rather were based on good faith efforts to obtain remedies from the district court that would be sustainable on appeal. Accordingly, we concluded that you did not engage in professional misconduct or exercise poor judgment.
We have also completed our investigation into allegations that you should have been disqualified from participating in the Philip Morris litigation because, prior to joining the Department, you served as a partner in a law firm that represented the R.J. Reynolds Tobacco Company. Based on the results of our investigation, we found that you did not have a conflict of interest in participating in the Philip Morris case and that you took appropriate steps under Department ethic rules to address the issue. Accordingly, we concluded that you did not engage in professional misconduct or exercise poor judgment.”
The Rest of the Story
In an ironic twist, the rest of the story is that the very group (ANR) which most vigorously attacked McCallum and accused him of politically-motivated ethical misconduct turns out to have been, in my view, itself guilty of politically-motivated ethical misconduct by virtue of its publicly attacking this individual without any reasonable documentation of wrongdoing, its misleading the public by presenting inaccurate information about his past involvement in tobacco litigation, and its refusal to wait until the evidence was in before accusing a man of ethical misconduct in a way that could, and has potentially, severely harmed his career.
And ironically, ANR was joined by the Campaign for Tobacco-Free Kids in making this irresponsible, politically-motivated, and ethically improper accusation and personal attack. The Campaign is supposed to be a public health organization, and it should certainly not be making political attacks against individuals without adequate documentation to support their claims. This is especially ironic since it is the Campaign which is working so hard to promote FDA legislation it says is needed to prevent the tobacco industry from making misleading and unsubstantiated health claims.
Might I humbly suggest that before they whine to the public about the tobacco industry making premature and unsubstantiated claims they should perhaps stop making premature and unsubstantiated claims of their own. It is going to be hard to be taken seriously by the public if they continue to act like such hypocrites.
It is important to note that this is not the end of the story and that McCallum has not been finally vindicated. There is still apparently an investigation ongoing within the Office of the Inspector General. Nevertheless, it is quite clear that there is right now no reason to believe that McCallum did anything wrong. And it is quite clear that ANR and the Campaign for Tobacco-Free Kids, as well as any other anti-smoking groups which accused McCallum of inappropriate politically-motivated involvement in the DOJ case have themselves acted unethically and inappropriately in a politically-motivated manner.
I hope that ANR, the Campaign for Tobacco-Free Kids, and other anti-smoking groups see why it’s so important to have documentation before you make political attacks like this as a public health movement. It just doesn’t look good when your declared “enemy” turns out to have acted appropriately and with good professional judgment and you turn out to have been the one acting unethically. And it's especially ugly when you have falsely accused someone of lying. This is an embarrassment for the anti-smoking movement.