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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?
loki13 (mail):
Honestly, I'm on the fence on this one.

1. On the one hand, given what we know now, the Bush administration has overly politicized the justice department. I would not be surprised if there is more to this.

2. On the other hand, it is within the sphere of the executive to determine law enforcement priorities. I agree with Mr. Adler that the use of expansive RICO powers to prosecute corporations seems like a low priority for a Republican administration.

I don't see this as a major issue. The US Attorneys, OTOH, is a major issue.
3.23.2007 1:04pm
Byomtov (mail):
Whether Eubanks' strategy was effective or not really doesn't go to the question of whether their was political interference that weakened the case.

Imagine a criminal case where there is political interference of the type complained about - telling witnesses to change testimony, etc. - intended to weaken the prosecution. There is an acquittal. Just because there might have been an acquittal anyway doesn't mean there was no interference.
3.23.2007 1:19pm
David Walser:
The prosecutor was trying to use RICO to set public policy. Why wouldn't it be appropriate for an administration, any administration, to claim for itself the right to make public policy choices?
3.23.2007 1:20pm
magoo (mail):
There's nothing untoward about having new political management at DOJ make fundamental changes to the way a case is being handled. Sometimes they do a complete 180 on position, as was the case with certain affirmative action cases (alleging reverse discrimination) inherited by the Clinton Administration.

Still, there's a point at which micromanagement does seem improper. If Eubanks is to be believed, the political leadership wrote out her closing argument and ordered her to read it verbatim in court, knowing she was not comfortable doing so. If they wanted the argument made a certain way that made the career prosecutor balk, they should have made it themselves (which they had every right to do). Forcing the career staff to stand up in court and make arguments they don't agree with (on pain of firing or other discipline, again if Eubanks is to be believed), is pretty god-awful.

Eubanks doesn't come off looking too good in this either, having now admitted she made arguments to the court that she believed were not in the best interests of the United States. She should have resigned prior to doing so. Im not sure "they made me do it" is a cognizable defense here.
3.23.2007 1:38pm
Dave Griffith (mail):

So where was her resignation letter? I would have thought that threatening to resign (and following through if necessary) was SOP in cases like she describes.
3.23.2007 2:17pm
Observer (mail):
I just want to note that none of the commentators above have responded to Adler's point that the Court of Appeals decision made Eubanks's position utterly untenable. Does anyone think it would have been responsible for DOJ to let Eubanks make a closing argument to the court demanding damages that the Court of Appeals had already rejected? I don't get it.
3.23.2007 2:18pm
Jonathan H. Adler (mail) (www):
Byomtov -

That's not what happened. Rather, the careers wanted to continue a strategy based on legal theories that were unsustainable on appeal, and the politicals reigned them in. If anything, the interference made legal victory more likely.

JHA
3.23.2007 2:20pm
Leland:
"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." . . .

No. You failed because the lack of a moral spine. Your ethics is to worry about your career first, what your bosses want second, and the American public is a distant third. If you were zealously representing the interests of the American public, you would have resigned rather than act against the American public's interest.

With that in mind, it is difficult to find her story credible. Either she was willing to lie before to protect her job or, she told the truth then and is lying now.
3.23.2007 2:28pm
Bpbatista (mail):
Politicizing tobacco litigation? Of course it is politicized. The Clinton administration made a political decision when they decided to institute the litigation and the Bush administration made a political decision when they decided to continue the litigation. Bush could have pulled the plug altogether but may have instead decided to tinker with some of the arguments used by the government. My question to anyone professing to be shocked by this is: So what?
3.23.2007 2:34pm
Baseballhead (mail):
I don't see this as a major issue. The US Attorneys, OTOH, is a major issue.

The big story always spawns a bunch of little, useless stories.
3.23.2007 2:34pm
TMac (mail):
It's not the nature of the evidence, It's the seriousness of the charges!
3.23.2007 3:13pm
rarango (mail):
I think baseball has it nailed--this is another smoke pot to add to the volume--the WaPo didnt mention until page 8 that the OPR had investigated and found no wrong-doing. methinks Ms E is simply capitalizing on the opportunity. But thats just me.
3.23.2007 4:16pm
Law Student in Texas (mail):
Ed Whelan over at NR's Bench Memos has more:

The article somehow fails to explain its most inflammatory charge, that senior officials "instructed her to tell key witnesses to change their testimony." A casual reader might think that senior officials wanted them to change their testimony on factual matters—in other words, to say things that the witnesses didn't believe to be true. But all that happened is that expert witnesses on remedies were asked to revise their testimony to comport with the revised remedies being pursued.

http://tinyurl.com/2pt5gn

And the roll career attorneys played.

http://tinyurl.com/3bd2qd
3.23.2007 4:40pm
Thorley Winston (mail) (www):

The big story always spawns a bunch of little, useless stories.


Maybe, although I'm not sure that firing (or accepting the resignations) of who people in the administration considered to be the bottom 10-15% of performers among the US Attorneys is really a "big story."
3.23.2007 5:03pm
logicnazi (mail) (www):
The prosecution of tobacco companies using RICO was a fundamentally political decision from the beginning. Sure I don't know if it was political in the sense of being dictated by political appointees but it surely was political in the sense of being driven by ideology rather than a straightforward application of understood law. Even if all the decisions were made by low level civil servants it doesn't change a thing.

I mean suppose some DOJ attorney decided to pursue inventive prosecutions against republicans (stretching the law etc..) because she was convinced that republicans presented a catastrophic risk to society? Or did the same against democrats? Or the Green Party? I mean she very well might be right (the election of the wrong party could very well cause millions of deaths through bad policies) but the fact that she is only a civil servant doesn't change the fact that this is an unacceptable politically motivated prosecution.

While the stakes are surely lower in the tobacco case (doesn't foundational threaten our status as a democracy) the same principle applies. Some DOJ employees reached a policy/moral decision (smoking is bad) and decided to apply the law in a way that wasn't reasonably foreseeable against only those companies who they objected to on ideological grounds. If this isn't a political abuse of the law I don't know what is! I mean if this behavior is acceptable from government attorneys when used against tobacco companies why isn't it acceptable when used in corruption investigations against political parties or religious groups they find objectionable?

I have some sympathy for the inventive use of criminal law when it is to prosecute someone who clearly should have known what they were doing was a serious violation of our social rules (killing people, committing fraud etc..). For instance if someone knowingly tricks the justice system into executing their (innocent) enemy it wouldn't be unreasonable to stretch the murder statute to cover them even if it wasn't clear on the face whether it covers a death pursuant to a valid execution warrant. Or if someone tricks gullible old people out of their retirement in a way that carefully avoids the literal wording of the fraud statute. It is fine to prosecute these people because they had reasonable grounds to believe they were infracting a serious social rule and should have known the government would come after them using whatever tricks it could muster. However, it seems clear that the executives at the tobacco companies reasonably thought they would be treated the way other companies who had mislead the public in similar ways had been and not prosecuted as a RICO organization.

The use of judicial punishment is only justified because the law (plus precedent and common sense) warn one about what one shouldn't do and how seriously you will be punished if you do it. This is what makes legal punishment different from a lynch mob. On the other hand prosecuting someone because in hindsight we have decided that the penalties that would have been understood to apply at the time weren't severe enough is no better than mob justice. Not only do such prosecutions do nothing to deter future crime they create dangerous uncertainty where companies can't act without fear public opinion will turn against them in the future. If I want to know if I can set up a clinic to genetically modify babies, grow GM food, make alcohol vaporizers (they have these...really cool) I would then have to worry that the law might be interpreted cleverly to prosecute me if public opinion ever turns against my product.

Hopefully this sort of abuse of discretion only happens in big nationally significant trials like tobacco litigation but I fear that it occurs to a lesser extent in smaller criminal trials. In particular that people will be prosecuted in ways that would normally be let go because the DA's find some underlying act or behavior immoral. For instance prosecuting someone for child neglect (rather than just taking the kid away) because they left their kid along while they went out to score drugs even though someone who left their kid along to go out and find their lost dog would be given a free pass. Or prosecuting someone who uses their neighbors wifi without permission to post raunchy pornographic stories when the people who use it just to browse the web aren't so prosecuted. Of course these are just hypotheticals to indicate what I'm talking about.

I realize that most prosecutions are simple applications of clear law (don't steal). However, i feel there has to be some way to prevent this sort of morally motivated abuse of discretion. I am tempted to say their should be a standard that prevents prosecution if a reasonable person would not have expected prosecution for just the illegal acts but there are all sorts of problems with this.

Frankly I don't know what to do but blatant misuse of the law like using RICO to try to prosecute tobacco companies really bother me. I fear that we have so many and so complex laws in this country that a motivated government can always find some way to prosecute those whose behavior they deem (retrospectively) to be worse than the obvious legally allowable penalties.

By the way this is much the same problem I have with allowing juries/parole boards to give leniency based on conversions to Christianity.
3.23.2007 7:01pm
Lev:

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,


A big if. And it was not a surprise, but rather seems to have been standard operating procedure.
3.24.2007 12:54am
Baseballhead (mail):
Maybe, although I'm not sure that firing (or accepting the resignations) of who people in the administration considered to be the bottom 10-15% of performers among the US Attorneys is really a "big story."

Well, it's been made pretty clear that:

1) It's a Big Story, big enough that the President and Congress are threatening "Constitutional Crisis" time,

2) Of the eight fired, only Ryan can be put into that bottom 10-15% of performers. Several of the fired were actually in the TOP 10-15%, as rated by the DOJ.

3) It's big enough that emails exchanged talked actively about how to keep this story from getting out and becoming an issue.

So, yeah. Big Story.
3.24.2007 2:06am
hugh:
I have been following the discussions of the tobacco litigation "scandal" and the firing of the 8 USA "scandal" and I find that many of the people with holding the strongest opinions concerning wrongdoing by the White House appear to be treating their assumptions as conclusively proven facts.

Let's try not to "assume facts not in the record."
3.24.2007 8:31am
godfodder (mail):
But hugh!! If we don't run around pretending things we don't know, and making up stories on scant evidence, how can we scream about the evil Bushies?? How can we demonstrate our moral/intellectual superiority?? What would we talk about? Don't you know that garish melodrama is how we see the world? That George Bush is Snydly Whiplash, Dr. Doom, and Swiper the Fox all rolled into one?? That now that the Plame Perfidy has run its course, we need to inflate another scandal with our collective indignation and hot air?

Sheeesh!
3.24.2007 12:36pm
Baseballhead (mail):
I, too, have been following the discussions of the tobacco litigation "scandal" and the firing of the 8 USA "scandal" and I find that many of the people holding the strongest opinions concerning the total absence of wrongdoing by the White House appear to be treating their assumptions as conclusively proven facts.

So it's all good.
3.24.2007 1:23pm
godfodder (mail):
Baseballhead:
There is this old, quaint idea called the "assumption of innocence." People who make allegations of lawbreaking are the ones with the burden of proof, not the other way around.

The only conclusion I have drawn about any of this is that I see no clear evidence of wrong-doing. Only claims of possible wrongdoing. Sooner or later, doesn't someone have to put up or shut up?
3.24.2007 6:02pm