Democrats Call for Investigation of Department of Justice Lawsuit Against Tobacco Companies
Several Democratic lawmakers on Wednesday called on the Department of Justice Office of the Inspector General to investigate "possible political interference by Bush appointees in the government's tobacco case," the Washington Post reports (Leonnig, Washington Post, 6/9). During closing arguments of DOJ's civil racketeering lawsuit against several large U.S. tobacco companies on Tuesday, DOJ attorney Stephen Brody said that the government is asking for $10 billion to fund a five-year smoking-cessation program, rather than seeking an anticipated $130 billion over 25 years.
The $130 billion was recommended during testimony by Michael Fiore, a medical professor and director of a tobacco research center at the University of Wisconsin who chaired the HHS Interagency Committee on Smoking and Health subcommittee on tobacco cessation. Fiore's testimony was widely considered to represent the amount DOJ was seeking.
The Washington Post on Wednesday reported that sources and government officials close to the case said the trial lawyers wanted to request $130 billion but were pressured by leaders in the attorney general's office to reduce the request. Similarly, the Los Angeles Times reported on Wednesday that an unnamed person familiar with the situation said the change was "forced on the tobacco team by higher-level, politically appointed officials" from DOJ, including Associate Attorney General Robert McCallum (California Healthline, 6/8).
McCallum is a former partner of an Atlanta law firm that represented R.J. Reynolds, one of the defendants in the case. McCallum on Wednesday said he will answer questions on the issue following closing arguments on Thursday.
U.S. District Judge Gladys Kessler, who is presiding over the case, on Wednesday in court said of the change, "Perhaps it suggests that additional influences have been brought to bear on what the government's case is." If Kessler rules in favor of DOJ, she can impose financial penalties of any size (Janofsky/Johnston, New York Times, 6/9).
Allegations on Wednesday also emerged that DOJ lawyers asked two of their own witnesses to "soften recommendations" about penalties for the tobacco companies, according to one of the witnesses and a source familiar with the case, the Washington Post reports.
Matt Myers, president of the Campaign for Tobacco Free Kids, said DOJ's lead trial lawyer asked him to scale back recommendations on penalty amounts that he had made in written testimony before he took the stand. Myers said the lawyer also asked him to not recommend a ban on marketing methods aimed at young people. Myers said he did not assent to the request.
In addition, according to the Post, four separate sources familiar with the case said DOJ asked a separate witness, scientific expert Michael Eriksen, to alter his testimony. Court documents show that Eriksen "departed from recommendations in his earlier written testimony," the Post reports (Washington Post, 6/9).
Reps. Henry Waxman (D-Calif.) and Marty Meehan (D-Mass.) wrote in a letter to DOJ Inspector General Glenn Fine, "The Justice Department's approach to tobacco litigation should be based on the facts of the case and not political favors to the tobacco industry. It is highly unusual for government prosecutors to abandon evidence-based testimony by their key witnesses at the last moment in a major trial. It is even more unusual for changes in strategy to be dictated by a political appointee with clear ties to the industry that is the defendant in the case."
The letter requested that Fine determine whether McCallum or any other politically appointed DOJ official improperly influenced the case. A separate letter signed by Sens. Frank Lautenberg (D-N.J.), Edward Kennedy (D-Mass.), Dick Durbin (D-Ill.), Ron Wyden (D-Ore.), Bill Nelson (D-Fla.) and Tom Harkin (D-Iowa) made the same request (Pierce, Roll Call, 6/9).
Harkin at a news conference said, "The administration needs to explain their sudden change in course" (Blackstone, Wall Street Journal, 6/9).
Kennedy said, "There are legal procedures by which they can reverse" the request for lesser penalties through a post-trial brief, "and we're asking them to do that."
Republican lawmakers who favor tobacco regulation "were mum" regarding DOJ's recent actions, according to Roll Call. Sen. Mike DeWine (R-Ohio) said, "I'm going to read (the news stories) and look at it, but I don't have an opinion yet" (Roll Call, 6/9).
DOJ spokesperson Eric Holland said the $10 billion program was "an initial requirement" that could be extended in the future. Holland added, "All decisions relating to this case were appropriately made based upon the legal merits of the case" (Levin/Simon, Los Angeles Times, 6/9).
A DOJ official on Wednesday said the $10 billion figure was requested in an effort to comply with an earlier ruling in an appeals court. The appeals decision, which occurred five months into the trial, stated that, under civil racketeering laws, the tobacco companies could not be ordered to surrender past profits, the New York Times reports. The DOJ official said of yesterday's request, "This is not politics. This is exactly the contrary. This is trying to stay within the law and trying to stay within a decision with which we disagreed" (New York Times, 6/9).
Ted Wells, an attorney for Phillip Morris, said, "I appreciate Mr. Brody taking $120 billion off," adding, "Whether the price of the smoking-cessation plan is $130 billion or $10 billion or 99 cents, it's still a fatally flawed program" (Wall Street Journal, 6/9).
Several broadcast programs reported on the tobacco settlement:
- ABCNews' "World News Tonight": The segment includes comments from Durbin, Lautenberg, Myers and Bill Ohlemeyer, vice president and associate general counsel at Altria (Stark, "World News Tonight," ABCNews, 6/8).
- NPR's "All Things Considered": NPR's Adam Hochberg discusses the trial (Hochberg, "All Things Considered," NPR, 6/8). The complete segment is available online in RealPlayer.
- PBS' "NewsHour with Jim Lehrer": The segment includes comments from Myers and Ohlemeyer (Ifill, "NewsHour with Jim Lehrer," PBS, 6/8). The complete transcript is available online. The complete segment is available online in RealPlayer.