Posted by Orin Kerr:
Leaks in DOJ Tobacco Case:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118932874
Today's [1]New York Times offers an unusually public perspective on
Justice Department infighting in the context of recent developments in
DOJ's anti-tobacco suit. I haven't been following the case, but it
seems that two weeks ago, at the end of a nine-month racketeering
trial against the major tobacco manufacturers, DOJ changed the scope
of the penalties it was seeking from $130 billion to $10 billion. The
speculation was that this was a politically motivated decision imposed
by DOJ political appointees, but in a [2]USA Today editorial Associate
AG Robert MacCallum denied the charge and offered other reasons for
the change in policy.
The latest development appears to be a leak by DOJ career lawyers
indicating that the career lawyers involved in the case strongly
opposed the decision but were overruled by DOJ political appointees
who became actively involved in the litigation. The Times story is a
bit cagey about saying that the career lawyers leaked the documents to
them; the story refers to the documents as "newly discovered"
documents "reviewed by" the Times. But I think I'm on fairly safe
ground when I assume that DOJ career lawyers were behind the leak. A
number of factual claims in the article are expressly based on
anonymous sources within DOJ, and the story features the money quote
by "a Justice Department employee involved in the case who insisted on
anonymity for fear of retaliation": "Everyone is asking, 'Why now?'"
the employee asks. "Why would you throw the case down the toilet at
the very last hour, after five years?"
I confess I don't know anything about the tobacco trial or its
merits, or whether the change in the damages sought was proper or
improper. (On one hand, the fact that DOJ politicals made the final
call isn't suprising, as in my experience major litigation decisions
are often made by DOJ bigwigs who are political appointees. On the
other hand, [3]this story says that the DOJ Office of Professional
Responsibility is investigating the case, which suggests that
political interference if it happened was a no-no. But beyond that I
have no sense of the merits here.) Either way, it's pretty rare for
DOJ career lawyers to be so ticked that they leak internal documents
to the New York Times, which makes me think that we probably haven't
heard the last of this story.
Comments enabled. As always, civil and respectful comments only.
References
1. http://www.nytimes.com/2005/06/16/politics/16tobacco.html
2. http://www.usatoday.com/news/opinion/editorials/2005-06-08-oppose_x.htm
3. http://www.usatoday.com/news/washington/2005-06-16-dems-tobacco_x.htm
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