Department of Justice in May Supported $130B Penalty in Lawsuit Against Tobacco Companies

Senior Department of Justice officials in a May 12 court filing argued that a $130 billion, 25-year smoking-cessation program was an appropriate legal penalty in the government's civil racketeering lawsuit against several large U.S. tobacco companies, the Washington Post reports. Last week, DOJ attorneys scaled back the request to $10 billion based on an argument that the $130 billion program did not comply with an earlier court ruling (Leonnig, Washington Post, 6/15).

During closing arguments of DOJ's lawsuit last week, attorney Stephen Brody said that the government is asking for $10 billion to fund a five-year smoking-cessation program. The $130 billion program anticipated previously was recommended during testimony by tobacco researcher Michael Fiore, 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 would seek.

The Post last week reported that sources and government officials close to the case said the DOJ lawyers wanted to request $130 billion but were pressured by leaders in the attorney general's office to reduce the request. The Post also reported that DOJ lawyers asked two of their own witnesses to tone down recommendations about penalties for the tobacco companies.

Similarly, the Los Angeles Times reported 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. McCallum said the reduced figure was consistent with an earlier appeals court ruling stating that DOJ could not request past profits to be included in damage awards.

The DOJ professional ethics office will investigate the decision to scale back the program (California Healthline, 6/14).

The May 12 filing said of the $130 billion figure, "The court should find that the remedy is not only forward-looking and aimed at future violations, but will act directly to prevent and restrain ongoing wrongful conduct of decades-long duration."

The document was a response to an argument from lawyers representing the tobacco companies that the cessation program was not in compliance with the appeals decision. The filing was signed by senior DOJ officials, including Assistant Attorney General Peter Keisler, who last week along with McCallum "insisted outside the courtroom that the same program would not comply with the law," the Post reports.

Antismoking advocates and some lawmakers said the document was "evidence that political considerations influenced the government's handling of the case," according to the Post.

Rep. Henry Waxman (D-Calif.) said, "This brief shows that the department had confidence in the legal merits of its request ... as recently as five weeks ago." He added, "I am now even more concerned that this decision was made to benefit the tobacco industry." Waxman said the DOJ investigation, which he and seven other lawmakers requested, should consider the filing.

William Corr, director of the Campaign for Tobacco-Free Kids, said, "The document indicates that the change in [DOJ's] position is due to political interference and not a response to the court of appeals decision."

Frank Marine, a senior litigation counsel for DOJ's case, said in a letter issued by a DOJ spokesperson that the reduction "was not the product of any improper influence but instead represented a considered professional decision." Marine said he recommended the change.

The Post reports that Marine's role in the trial was "limited" and that he "has not been in court in recent months." DOJ lead trial attorney Sharon Eubanks declined to comment (Washington Post, 6/15).

• Hartford Courant: "Lawmakers rightly were suspicious about the strange turn of events in the trial," a Courant editorial states, adding that reports of DOJ attorneys pressuring government witnesses to tone down testimony "would be an outrageous attempt by [DOJ] officials to undercut their own case" (Hartford Courant, 6/15).
  



• Tennessean: "For the sake of its credibility and the health of American citizens, the White House needs to explain this astounding about-face in legal strategy," a Tennessean editorial states (Tennessean, 6/15).