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Re: Blowing Smoke



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In support of my point 2 in my post below—that every decision that senior DOJ officials made originated with, and was consistent with the advice of, career prosecutors in the Criminal Division of the Justice Department—here’s a letter to the editor published in the Washington Post on June 15, 2005, by Frank J. Marine, a DOJ career attorney in the Criminal Division.  I’ve italicized key portions.

 

A June 10 editorial said that the Justice Department’s decision to reduce from $130 billion to $10 billion the amount it sought from the major tobacco companies in its fraud case “appears to be the result of political pressure.” It also came to the offensive and unfounded conclusion that the change was not based on the “legal merits” of the case as assessed by “career lawyers.”

I am a senior member of the Justice Department section involved with enforcement of racketeering laws. In 1998 the office of Attorney General Janet Reno asked whether it would be appropriate to bring civil racketeering claims against the tobacco industry for defrauding the public. I recommended that such a lawsuit be brought, and I have been a member of the case’s trial team ever since.

At the trial, Michael C. Fiore testified that a smoking-cessation program that would enable smokers who wished to quit to do so would cost $130 billion and take 25 years. However, the legal requirements that the appeals court established for the case said specifically that any remedy must be limited to addressing future violations of the law by the tobacco companies and may not seek to address the injuries caused by their past fraudulent conduct.

I was concerned that a reviewing court might conclude that Dr. Fiore’s proposal would not satisfy that standard, so I recommended that the department present to the court a modified program designed to comply with the appeals court’s decision. My recommendation was adopted.

With respect to the editorial’s allegation that witnesses were asked to soften their testimony, I was concerned that some witnesses were seeking to propose remedies that would violate the Constitution and laws and that the Justice Department could not endorse such proposals. As a result, the department determined that the witnesses it put on the stand had to include in their testimony a statement that they spoke only for themselves and not for the department — as they then did.

Both my parents died of smoking-related illnesses, and I yield to no one in my desire to devise remedies to help addicted people stop smoking. However, as a public official and an officer of the court, my actions must comport with the rule of law. My actions and those of other career prosecutors involved in this case have done just that.

  

Tags: Whelan


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