Was There "Political Interference" in Tobacco Litigation?

With the Attorneygate scandal continuing unabated, the time was right to renew charges that political appointees in the Bush Justice Department interfered to weaken the federal government's attempt to sue tobacco companies under Racketeer Influenced and Corrupt Organization (RICO) Act. Yesterday, the Washington Post ran a front page article repeating allegations by former Justice Department attorney Sharon Eubanks that "Bush loyalists" at DoJ "began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers."

She said a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony. And they ordered Eubanks to read verbatim a closing argument they had rewritten for her, she said.

"The political people were pushing the buttons and ordering us to say what we said," Eubanks said. "And because of that, we failed to zealously represent the interests of the American public." . . .

Eubanks said [DoJ political appontees] largely ignored the case until it became clear that the government might win. She recalled that "things began to get really tense" after . . . news reports in April 2005 that one government expert . . . would argue that tobacco officials who engaged in fraud could be removed from their corporate posts.

The article notes that DoJ's Office of Professional Responsibility rejected the charges after a formal investigation. Surprisingly, it makes no mention of the appeals court decision which largely pulled the rug out from under the Justice Department's legal strategy. In February 2005, in United States v. Philip Morris USA, the U.S. Court of Appeals for the District of Columbia Circuit roundly rejected the Justice Department's expansive interpretation of RICO that had been accepted by the lower court, and upon which Eubanks and others had hoped to base draconian penalties. Among other things, the court held that government prosecutors could not seek what amounted to criminal penalties (e.g., disgorgement) under RICO's civil provisions. This greatly reduced the government's leverage in settlement negotiations with tobacco companies, and called for rethinking the legal theory of the government's case — something Eubanks apparently did not wish to do.

The D.C. Circuit panel was divided, but there was never much doubt about the outcome — or that it would be upheld en banc, as it was in April (when Eubanks says she first started to get pressure to scale back the government's case). From its inception, the federal government's tobacco litigation was based on an extremely aggressive and expansive interpretation of RICO.

If there was a surprise, it was that political appointees in the Bush Justice Department allowed the government's case against tobacco makers to proceed for the first five years of the administration without any meaningful oversight, particularly given the novelty and expansive nature of the legal theory upon which the prosecution was based. One does not need to hold any sympathy for tobacco companies to believe a Justice Department victory would have set a dangerous precedent, greatly expanding RICO's scope, and the federal government's ability to use RICO's civil provisions against corporations. It was certainly not the sort of precedent one would expect an ostensibly conservative Justice Department to pursue.

The Post article also quotes anti-tobacco activist Matthew Myers saying Eubanks account is "the only reasonable explanation" for what occurred. Perhaps Myers should consult the tobacco litigation timeline posted on his own organization's website, as it includes the D.C. Circuit's decisions in its chronology of relevant events.

UPDATE: At NRO's Bench Memos, Ed Whelan has more on the allegations here and here.

SECOND UPDATE: E.J. Dionne repeats the allegation here.

Related Posts (on one page):

  1. Interference with Tobacco Litigation: DoJ Responds:
  2. Was There "Political Interference" in Tobacco Litigation?