Lawyers Fought U.S. Move to Curb Tobacco Penalty

By ERIC LICHTBLAU
Published: June 16, 2005

WASHINGTON, June 15 - Senior Justice Department officials overrode the objections of career lawyers running the government's tobacco racketeering trial and ordered them to reduce the penalties sought at the close of the nine-month trial by $120 billion, internal documents and interviews show.

The trial team argued that the move would be seen as politically motivated and legally groundless.

"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 decision generated protests from health advocates and Democratic lawmakers, who accused the Bush administration of political motives, and it prompted an internal departmental inquiry. But details of the behind-the-scenes debate over the issue had remained a mystery.

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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.

Officials who insisted on anonymity said the change on the penalties provoked such strong objections from the trial team that some lawyers threatened to quit. Department officials have now proposed that a lower-level lawyer who has outlined the reasons for reduced penalties take over crucial parts of the remainder of the trial.

More republican meddling into what should have been a clear victory for people. But with Mr. McCallum changing to the lower amount, the tobacco industry can just write that amount off as a loss and charge smokers alittle more per pack to regain their loss.

What a waste of tax payers money!

Semper Fi