Relying upon "internal documents and interviews,"
Eric Lichtblau reports that the Justice Department decision to reduce radically the damages sought in the current federal tobacco litigation resulted from the intervention of top political appointees who
"overrode the objections of career lawyers running the government's tobacco racketeering trial."
continued below the fold
"We do not want politics to be perceived as the underlying motivation, and that is certainly a risk if we make adjustments in our remedies presentation that are not based on evidence," the two top lawyers for the trial team, Sharon Y. Eubanks and Stephen D. Brody, wrote in a memorandum on May 30 to Associate Attorney General Robert D. McCallum that was reviewed by The New York Times.
The two lawyers said the lower penalty recommendation ordered by Mr. McCallum would weaken the department's position in any possible settlement with the industry and "create an incentive for defendants to engage in future misconduct by making the misconduct profitable."
At the close of a major trial that dozens of Justice Department lawyers spent more than five years preparing, the department stunned a federal courtroom last week by reducing the penalties sought against the industry, from $130 billion to $10 billion, over accusations of fraud and racketeering. . . .The department did not dispute the authenticity of the memorandum but declined to make Mr. McCallum or other lawyers available to discuss it.
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The newly disclosed documents make clear that the decision was made after weeks of tumult in the department and accusations from lawyers on the tobacco team that Mr. McCallum and other political appointees had effectively undermined their case. Mr. McCallum, No. 3 at the department, is a close friend of President Bush from their days as Skull & Bones members at Yale, and he was also a partner at an Atlanta law firm, Alston & Bird, that has done legal work for R.J. Reynolds Tobacco, part of Reynolds American, a defendant in the case.
"Everyone is asking, 'Why now?' " said a Justice Department employee involved in the case who insisted on anonymity for fear of retaliation. "Why would you throw the case down the toilet at the very last hour, after five years?"
Ultimately, Mr. McCallum overruled the objections from the trial team, and the documents and interviews suggest that his senior aides took the unusual step of writing parts of the closing argument that Ms. Eubanks delivered last week in federal court in seeking the reduction in penalties.
<snip>
In their seven-page memorandum, Ms. Eubanks and Mr. Brody offered a point-by-point rebuttal to what they characterized as Mr. McCallum's "watered down approach." They said the higher penalty, as outlined by a health expert last month, was in keeping with the appellate court's "forward looking" approach and would help millions of people quit smoking in the next 25 years.
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The lawyers also expressed some frustration that Mr. McCallum had already reached a preliminary decision to reduce the proposed penalty "without reviewing the evidence that supports our factual and legal arguments." They said "it is regrettable that no one would even review" their rationale "and tell us where it went wrong."
The memorandum also questioned the handling of some government witnesses who were asked to alter their written testimony to reflect the department's concerns.
One witness, Matthew Myers, president of the Campaign for Tobacco-Free Kids, said in an interview Wednesday that Ms. Eubanks called him last month, hours before his final written testimony was due to be filed, and told him that Mr. McCallum and other senior officials wanted him to eliminate part of the testimony. The part the department wanted to omit, Mr. Myers said, centered on antismoking steps that he believed were wrongly omitted from the tobacco settlement in 1997, including limits on advertising.
Crony capitalism anyone?