In last Thursday's post, I discussed the legal issues involved in the remedies aspect of the DOJ tobacco case, explaining why the insistence of former Associate Attorney General Robert McCallum that the trial team substitute a $10 billion "partially forward-looking" remedy for a $130 billion "entirely backwards-looking" remedy did not in fact represent an undermining or destruction of the case, but actually a bit of a strengthening.
In my opinion, altering a remedy that had ZERO chance of being upheld by the D.C. Appeals Court could in no way have destroyed the case. If McCallum had really wanted to destroy the case, there are a lot of more effective things he could have done, including refusing to allow the trial team to appeal the appellate court decision to the U.S. Supreme Court.
In considering the discussion that this post provoked, I sense that the most important aspect of this issue has been lost. So I want to take this time to re-emphasize what I think is the real story here.
The real story is the importance of having solid documentation of wrongdoing before we in tobacco control make public accusations in which we malign the character of an individual, especially when we are issuing vicious, personal, political attacks.
I cannot read people's minds and so I cannot claim to have 100% definitive knowledge of whether McCallum acted appropriately or inappropriately. I could, possibly, be wrong in suggesting that the change in the requested remedy was motivated primarily by legal concerns related to the consistency of the proposed remedy with the appellate court's decision. But that's OK. I'm not accusing anyone of wrongdoing, so if my opinion turns out to be wrong, I can simply report the new findings if they come out and then join the anti-smoking groups in condemning McCallum. And I would be quick to do so and would do it in the strongest possible terms.
In contrast, the Campaign for Tobacco-Free Kids (TFK), Americans for Nonsmokers' Rights (ANR), and other anti-smoking groups that have attacked McCallum have made personal accusations against McCallum that could well destroy his career. These accusations, in fact, came very close to denying him the ambassadorship to Australia.
If it turns out that these groups are wrong, it is too late. There is nothing they could possibly do to repair the damage they have already done to this man's character.
Beyond the damage these groups have done to the character of an individual based on unsubstantiated and undocumented claims of wrongdoing, an equally important concern is the damage these groups have done to the tobacco control movement by putting us in the same category as the tobacco companies by virtue of our making widespread public claims that are unsubstantiated and undocumented.
We are quick to criticize the tobacco companies for making unsubstantiated claims. ANR has criticized the tobacco companies incessantly for claiming that smoking bans hurt restaurant sales when the evidence does not support that claim. TFK has criticized the tobacco companies incessantly for claiming or implying that low-tar and low-nicotine cigarettes are safer to health when the evidence does not support such a claim.
If we are to retain any credibility in criticizing tobacco companies for making undocumented claims, then is it not important that we not make undocumented claims of our own?
This is why I am particularly troubled by the behavior of some of the major anti-smoking groups in prematurely attacking McCallum, without adequate evidence that any wrongdoing took place (and in fact, in the presence of a DOJ investigation which concluded that there was no wrongdoing and that McCallum acted appropriately and with good judgment).
Could the DOJ investigation have been a complete farce? Could DOJ be completely covering up unethical behavior by McCallum? It's possible. It's certainly a theory. But the point is - there is absolutely no evidence, even at this late point in the game (the anti-smoking groups' attacks commenced more than a year ago and in one year, the only evidence that has been produced refutes their claims of wrongdoing) to support the anti-smoking groups' vicious (and now potentially defamatory) attacks.
In the wake of McCallum being cleared for involvement in the tobacco case by the DOJ Ethics Office and in the wake of his being cleared of any wrongdoing in the DOJ investigation, ANR is today proclaiming on its website that there is a "cancer on the Department of Justice" and that "the Justice Department, led by political appointees with tobacco ties [McCallum], ... [attempted] to torpedo the case in its final hours."
While I criticized ANR for putting this unwarranted political attack out without documentation at the time they put it up on their web site, certainly one would expect that given the fact that McCallum has been cleared, ANR would at very least remove this vicious attack from their web site now. Why can't they simply admit that they don't have the evidence to indict McCallum now and remove this propaganda until they have actual evidence, if it turns out that they are right?
To this day, ANR still has on its web site yet another attack on McCallum, which goes so far as to accuse him of ethical wrongdoing that warrants a claim being filed with the bar against him. Today, ANR states on its web site: "So, 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."
Well, the Department of Justice did investigate his role in the case, and they cleared him of any wrongdoing. How could there be sufficient reason for an ethics complaint to be filed with the Federal Bar when there is no evidence that he did anything wrong? And most disturbingly, how could ANR retain its misleading claim that McCallum "has been a tobacco industry lawyer" when they themselves admitted their mistake in using this terminology to characterize McCallum?
It's not just ANR which is misleading the public and prematurely attacking McCallum without adequate documentation of wrongdoing and in the presence of evidence that there was no wrongdoing.
To this day, the Campaign for Tobacco-Free Kids continues to tell the public that the change in the smoking cessation remedy from a $130 billion backwards-looking and therefore unallowable remedy to a $10 billion partially forwards-looking and therefore at least potentially allowable remedy: "was the direct result of efforts by Associate Attorney General Robert McCallum, a political appointee, pressuring the Justice Department lawyers to change their strategy and let the tobacco industry off the hook."
This is an unsubstantiated claim as so far, there is no documentation that McCallum was acting in order to "let the tobacco industry off the hook." As I have argued, even if he intended to do so, McCallum's actions would not in any way have "let the tobacco industry off the hook."
To make matters worse, the largest tobacco control list-serve has, without documentation of wrongdoing, informed literally thousands of tobacco control advocates and the public that Bush has "rewarded" McCallum for "rescuing" the tobacco industry.
Clearly, McCallum did not "rescue" the industry. He certainly did not hurt the tobacco case by tailoring the smoking cessation remedy and he certainly did not block the appeal of the Appeals Court decision to the Supreme Court. And there is no evidence that Bush is rewarding him for intervening politically in the DOJ case to protect the industry's interests. This is an unsubstantiated, and in my mind, misleading attack, accusation, and public statement.
The Rest of the Story
The rest of the story is that by making unsubstantiated and undocumented claims of political interference and ethical wrongdoing, we are acting in a manner little better than the tobacco industry, which we incessantly attack for making unsubstantiated health claims to the public. If we want to retain any credibility to levy such criticisms, then I think first we need to get our own house in order and cease making premature, undocumented attacks, especially ones which could well destroy the reputation and career of an individual.
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