DOJ, Industry Attorneys To Meet With Kessler To Discuss Tobacco Trial

U.S. District Judge Gladys Kessler, who is presiding over the federal government's civil racketeering lawsuit against several U.S. tobacco companies, is scheduled to meet with government and tobacco lawyers on Monday to discuss the Department of Justice's proposed penalties against the industry and the status of the case, the Washington Post reports. DOJ spokesperson Charles Miller said Kessler requested the meeting but did not disclose the subject. However, according to "sources close to the case," Kessler has indicated an interest in the government's "eleventh-hour reduction" of its penalty request, the Post reports (Leonnig, Washington Post, 6/18).

During closing arguments of DOJ's lawsuit earlier this month, department attorney Stephen Brody said that the government is asking for $10 billion to fund a five-year smoking-cessation program, rather than an anticipated $130 billion over 25 years. The $130 billion was recommended during testimony by tobacco researcher Michael Fiore, who chaired the HHS Interagency Committee on Smoking and Health subcommittee on tobacco cessation. The Post reported that sources and government officials close to the case said the DOJ lawyers were pressured by leaders in the attorney general's office to reduce the penalty request and that DOJ lawyers also asked two of their own witnesses to tone down recommendations on penalties.

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 did not confirm or deny that he ordered DOJ attorneys to cut the smoking-cessation proposal, adding that 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.

In response to several lawmakers' requests, DOJ's professional ethics office earlier this week agreed to investigate whether political concerns played a role in reducing the penalty request (California Healthline, 6/17).

In addition, four senators on Friday requested that Attorney General Alberto Gonzales remove McCallum and other political appointees from the case. Monday's court meeting to discuss the case is expected to be closed to the public (Washington Post, 6/18).

In related news, Max Bazerman, a Harvard University business professor and a witness for the government in the case, said Sunday that a high-ranking DOJ official threatened to remove him from the witness list if he did not reduce his recommended penalties against the tobacco industry. According to Bazerman, a DOJ lawyer informed him that department officials were making a "strong request" that Bazerman change his recommendation that the court appoint a monitor to consider whether to remove senior tobacco company officials from their positions to avoid future wrongdoing. The lawyer said McCallum threatened to remove Bazerman from the witness list and prevent him from testifying if he did not change his testimony. Bazerman was instructed to say in his testimony that it would be legally inappropriate to appoint a monitor.

Bazerman said he refused to change his testimony and ultimately was allowed to testify on May 4. He added that he did not know why DOJ allowed him to testify. "I thought then, and I believe now, that it was inappropriate influence to weaken the government's case against the tobacco industry." He added, "I can't think of an honest, plausible reason other than political interference for what they're doing."

Miller said that Bazerman's interpretation of DOJ's comments was incorrect, adding, "The issues discussed with Dr. Bazerman regarding his testimony were focused on ensuring that the department's proposals in this case complied with the long-standing department policies that apply to all racketeering cases the government brings, policies that substantially predate this administration."

Louis Clark, president of the Government Accountability Project -- which represents Bazerman -- said Bazerman's comments should prompt the government to investigate the case independent of DOJ's investigation (Leonnig, Washington Post, 6/20).

In related news, the New York Times on Sunday examined allegations that DOJ's recent actions were politically motivated, noting that the "tobacco case has always been politically tinged, whether a Democrat or a Republican was in the White House." According to the Times, the case recently "has created a political tempest for the Bush administration, as health advocates and Democrats in Congress have protested" the decision to reduce the penalty request "as politically calculated." Bush's critics have said the action and the administration's "ambivalence toward the lawsuit" are "evidence of ... close ties to big business in general and the tobacco industry in particular," the Times reports. However, the Times notes that when President Clinton announced plans to file the lawsuit in 1999, his critics said the action demonstrated "excessive exuberance and an overly litigious nature."

According to current and former members of DOJ's tobacco trial team, "during the Clinton and the Bush administrations, the political leanings of whichever administration was in charge were always a factor in a case involving so much money and so many powerful players," the Times reports.

Paul Honigberg, a lawyer who worked on the DOJ's case from the beginning, said, "I don't know that what the Bush administration has done is any more politically based than what Clinton did in bringing the case in the first place." He added, "A high-profile case like this represents a place where policy and the law inevitably cross, and you have to figure senior officials in the Justice Department have a right to make decisions based on their view of policy and the law" (Lichtblau, New York Times, 6/19).