Friday, July 29, 2005

An Insider's Take on the DOJ Tobacco Trial: Don't Be Hasty in Accusations of Political Interference

Kenneth N. Bass, an attorney who formerly represented Brown & Williamson in the DOJ tobacco lawsuit but has subsequently left that case and the practice of Kirkland & Ellis, offers an insider's view of the events that occurred during the final days of the tobacco trial in a July 25 article published in the Legal Times Online.

The premise of Bass' opinion regarding the sudden change in the smoking cessation remedy from $130 billion to $10 billion is that "anti-tobacco activists, newspaper ediotrialists, and leading Democratic Party figures have called for an investigation into the DOJ's actions, and the DOJ inspector general has reportedly begun looking into the matter. Unfortunately, those same press reports ignored key facts that suggest a far more benign explanation for the DOJ's actions."

The most important of these facts is that "this new remedy (the $130 billion smoking cessation program) was practically dead on arrival...In Order No. 886, entered on Feb. 28, a clearly frustrated Judge Kessler wrote that while it would be 'premature' to rule out any of the government's nondisgorgement remedies, she was concerned that most of them read as if the appeals court had 'never written' its intervening decision. ... Yet the government went forward. The court repeatedly asked during the remedies phase, and then again in closing arguments, how the government could square the cessation program with the appellate ruling, but no one had a satisfactory answer."

According to Bass, then, the most plausible explanation for the government's change in course and for the intervention of senior DOJ officials, is that the request for the $130 billion remedy was a "train wreck" with no chance of being ordered or upheld, that the trial team lawyers wanted to stick to the $130 billion, and that senior officials therefore intervened to give the remedy at least a shot and insisted that the backwards-looking remedy be re-fashioned as a less expensive but more carefully tailored forwards-looking remedy.

Bass further argues that those lawyers who were not involved in the day-to-day court activities and were not so heavily vested in the weak testimony that supported the $130 billion remedy might have been in a better position to see the widest and most clear perspective on the case. If anything, Bass asks, why did it take so long for senior officials to intervene?

Finally, Bass argues that the changes requested in the expert testimony of two witnesses - Matthew Myers and Dr. Max Bazerman - were not the result of political intererence to protect the tobacco industry, but rather, were due to a concern that the Department not "embarrass" itself by having Myers' testimony, which Judge Kessler apparently called a "political speech," thrown out and to protect against Bazerman's testimony, which Kessler called "troubling on many grounds," from also being thrown out.

The Rest of the Story

To those who have been reading The Rest of the Story during the past seven weeks, Bass' arguments may sound familiar. That's because his impression of the case, from the inside, is exactly the same as my impression, from the outside.

In a June 10 post, entitled "IN MY VIEW: Don't Be Hasty in Accusations of Political Interference in DOJ Case," I wrote:

"Accusing the Administration and high-ranking DOJ officials of political interference certainly makes a nice story, but I think anti-smoking groups should be careful before jumping to conclusions about the reasons for the DOJ's reduction from $130 billion to $10 billion in the amount requested for a national smoking cessation program it proposes as a remedy should it prevail in the RICO-based lawsuit against the tobacco companies. ...

First, there is as yet no evidence that political interference indeed was the reason for the abrupt change in legal strategy. I think we in public health need to be more careful and to have better documentation before we make the kind of definitive accusatory statements that some anti-smoking groups have made. ...

Second, it makes no sense for the Administration or senior DOJ officials to intervene on behalf of the tobacco companies by demanding that the lawyers prosecuting the case present a more narrowly tailored remedy that has a greater chance of passing muster with the D.C. Court of Appeals. If anything, the Administration and senior DOJ officials could have hurt the case the most by allowing the statutorily unjustified request (at least in the view of the appellate court) to stand. ...

Asking for a $130 billion program to treat existing smokers in light of an appellate court decision that a RICO remedy has to be "forward-looking" is guaranteed to produce as a result a $0 billion program. Can it not be said that a program to treat existing smokers "is a quintessentially backward looking remedy focused on remedying the effects of past conduct to restore the status quo?" This is the exact language of the D.C. Court of Appeals decision against allowing disgorgement as a remedy. Under these constraints, a program to provide cessation services for existing smokers simply has no chance of prevailing, even if Judge Kessler were to ignore the appellate court ruling and issue such an order. ...

Now, before readers ask the question, let me address the clear evidence that the decision to change the requested remedy was thrust upon the trial lawyers from above. That seems clear. But that doesn't imply that it was a politically-motivated decision. It still could well have been a strategic decision, one based on an upper-level judgment that a remedy that is more consistent with the D.C. Court of Appeals' decision has a better chance of being upheld. Again, being familiar with the legal issues in the case, it just doesn't make sense for the Administration to intervene in this way as a means of "protecting" the tobacco companies from financial harm. The D.C. Court of Appeals has already done that."

Bass' comments are in particular accord with those made by a blogging commentator named "tobacco observer" in response to Gene Borio's post about the DOJ case events: "Now I agree that it is actually quite probable that someone higher up in the DOJ mandated this last minute change. But that’s probably because someone higher up and less close to the case could see the obvious. . .that the $130 billion request was absurd, has nothing whatever to do with RICO violations, and is exactly the same kind of thing that the DCCA said wasn’t allowed. Whomever made the decision probably realized that there was going to be no settlement negotiations, and was sick-and-tired of watching the gov’t get slapped around every single day in the courtroom on impermissible remedies, so they mandated this change as a tactical one (not a political one)."

None of this, by the way, means that Kenneth Bass, "tobacco observer," or I am right. It is still possible, and I am not ruling out the possibility that the decision was based purely on a political desire to protect the tobacco companies from financial harm. But I really don't think so. At very least, I do not see grounds to justify the vigorous definitive accusations of political interference and wrongdoing by a number of anti-smoking groups.

When I issued my initial opinion on this matter, I myself was roundly criticized and attacked by some very prominent members of the anti-smoking movement. In fact, I was called a "discredit" to the tobacco control movement, was attacked as having gone off the deep end, and was asked to take a 3-month hiatus from my writing on this issue. The attacks forced me to leave an anti-smoking list-serve that I had been a significant contributor to for the past four or five years.

But when all is said and done, the rest of the story suggests that at the present time, there is every bit as much reason to believe that the decision by DOJ's senior officials to force the trial team to re-fashion the smoking cessation remedy was a strategic one as there is to believe that it was a political one, and probably a whole lot more.

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