DOJ Tobacco Ruling Demonstrates that McCallum Did Not Destroy or Undermine Government's Case; Anti-Smoking Groups Were Wrong

Contrary to what the Campaign for Tobacco-Free Kids (TFK), Americans for Nonsmokers' Rights (ANR), and other anti-smoking groups claimed, former Associate Attorney General Robert McCallum did not in fact destroy or undermine the government's case in the DOJ tobacco lawsuit.

As demonstrated by yesterday's ruling by the D.C. District Court, McCallum's decision to substitute a $10 billion smoking cessation remedy for a $130 billion smoking cessation remedy had no impact whatsoever on the case, because as Judge Gladys Kessler ruled, $0 of smoking cessation remedy was allowable under the D.C. Appeals Court's interpretation of the RICO statute.

As I predicted months ago, Kessler refused to order any of the three monetary remedies sought by the Department of Justice and by anti-smoking group intervenors (including TFK and ANR).


Smoking Cessation Remedy: Kessler ruled that "Adoption of such a national smoking cessation program would unquestionably serve the public interest. However, under the narrow standard for §1964(a) remedies articulated in Judge Sentelle’s Opinion, the Court cannot enter such a remedy because it is not specifically aimed at preventing and restraining future RICO violations."

Public Education and Counter-Marketing Remedy: Kessler ruled that "Adoption of such a public education and countermarketing campaign would unquestionably serve the public interest. However, under the narrow standard for §1964(a) remedies articulated in Judge Sentelle’s Opinion, the Court cannot enter such a remedy because it is not specifically aimed at preventing and restraining future RICO violations."

Youth Smoking Reduction Targets Remedy: Kessler ruled that "Youth smoking rates may increase or decrease due to input factors beyond Defendants’ control. Accordingly, because the targets are aimed at reducing the public health consequences of marketing to youth and are not narrowly tailored to prevent and restrain Defendants’ future RICO violations, the Government’s proposed remedy cannot be entered by this Court."

The Rest of the Story

Those who have followed The Rest of the Story will see that Kessler's ruling with respect to each of these three remedies is what I predicted months ago. I opined that the smoking cessation and counter-advertising remedies would be denied because they are not designed to prevent and restrain future RICO violations. And I opined that the youth smoking reduction targets remedy would be denied because there was not a direct enough connection between youth smoking prevalence and RICO violations (too many other factors, other than RICO violations, can affect youth smoking rates).

Unfortunately, the legal analysis and judgment of the anti-smoking organizations that are actually leading the movement and making the decisions is not so good. These groups pinned their entire intervention on the premise that the government had let down the public by not pursuing the $130 billion smoking cessation remedy and that the multi-billion dollar public education and counter-marketing and youth smoking prevalence target remedies were the be-all and end-all of the case.

These groups also staked their reputations and credibility on the claim, which I thought was premature at the time, that McCallum destroyed the government's case by altering the $130 billion remedy. These anti-smoking groups went so far as to publicly attack McCallum and accuse him of ethical wrongdoing, without having any evidence to support their claims.

Now that the Court has ruled, it is clear that McCallum did not in fact destroy or undermine the government's case in any way. His action was irrelevant, as no smoking cessation remedy would have been allowable by Judge Kessler, given the appellate court ruling which she is obligated to follow.

The smoking cessation remedy is a backwards-looking remedy designed to remedy past wrongdoing, not to directly prevent and restrain future RICO violations. Thus, it is not allowable under the RICO statute, at least as interpreted by the D.C. Appeals Court.

Barring a surprise reversal of the appellate court ruling by the U.S. Supreme Court, the issue of whether McCallum undermined or destroyed the government's case is now closed. Given this fact, it should be only a matter of hours or perhaps days before TFK, ANR, and other anti-smoking groups and leaders apologize for their unwarranted attacks on McCallum and for their inaccurate claim to the public that he destroyed the DOJ's case. Retractions and apologies will be forthcoming, I am sure, given the high ethical standards and integrity of these anti-smoking organizations.