Posted by Orin Kerr:
Leaks in DOJ Tobacco Case:

   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.



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