Bench Memos

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Blowing Smoke


If there is a story that is more factually confused and shows greater confusion about the proper role of so-called political appointees in the executive branch than the U.S. attorneys kerfuffle, it is this article in today’s Washington Post titled “Prosecutor Says Bush Appointees Interfered With Tobacco Case”.  In the article, Sharon Eubanks, the now-retired career lawyer in the Department of Justice who led a civil lawsuit against tobacco companies, complains that senior DOJ political appointees improperly meddled in her case.  Specifically, the article says that the senior officials “demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty,” reduced the proposed monetary penalty sought in the case, “instructed her to tell key witnesses to change their testimony,” and “ordered [her] to read verbatim a closing argument they had rewritten for her.”


Eubanks’s charges are absurd: 


1.  Even if the correct story line were that “political appointees” reversed course on what career attorneys wanted to do—and, as I discuss in point 2, that’s not what happened—so what?  As much as some career DOJ lawyers may not like it, they answer to the non-career “political” appointees whom the President and the Attorney General put in charge to implement the Administration’s law-enforcement and legal-policy priorities.  That’s part of what a presidential election is all about.  To regard direction from senior DOJ officials as “interference” is to misunderstand who answers to whom.


Does anyone doubt, for example, that senior DOJ officials may properly seek to reduce the penalty that underlings propose?  Let’s say that a prosecutor wanted to seek the death penalty against a criminal defendant but was overruled by senior officials.  Would anyone call this improper interference?  Reasonable people might disagree with the judgment of the senior officials, but I don’t see how anyone can dispute their authority.  (In the tobacco case, as one of the senior officials (paraphrased in the article) points out, the decision that was made “was vindicated by the judge’s ruling that she could not order” even the lower proposed penalty.)


2.  I am reliably informed 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, who generally have jurisdiction over RICO cases, both civil and criminal.  (The tobacco case ended up being handled by the Civil Division because the original complaint led with non-RICO charges (which were dismissed).)  All that senior DOJ officials did was referee disputes between the DOJ career attorneys in the Criminal Division who were expert in this area and Eubanks’s team.


3.  The title of the article strains to echo the unsubstantiated insinuations in the U.S. attorneys matter.  It even labels Eubanks, a Main DOJ civil litigator, as a “prosecutor”.  (Although that usage is technically defensible—any plaintiff’s lawyer can be said to “prosecute” a case—the term “prosecutor” is generally reserved for those who prosecute crimes, and I doubt very much that there are any civil litigators in Main Justice who refer to themselves as prosecutors.)


4.  To seek, as a civil remedy against a corporation, the dismissal of corporate executives is a highly unusual remedy.  This case (I am reliably informed) did not meet the refined criteria that the Criminal Division had established.  More generally, the revision in remedies sought was a direct response to the D.C. Circuit’s interlocutory ruling rejecting the government’s more grandiose disgorgement theories (a ruling that those bad, bad political appointees tried to get overturned in the Supreme Court).


5.  The article somehow fails to explain its most inflammatory charge, that senior officials “instructed her to tell key witnesses to change their testimony.”  A casual reader might think that senior officials wanted them to change their testimony on factual matters—in other words, to say things that the witnesses didn’t believe to be true.  But all that happened is that expert witnesses on remedies were asked to revise their testimony to comport with the revised remedies being pursued.


6.  If senior officials ordered Eubanks to read verbatim a closing argument they had drafted for her, that is obviously because they did not trust her to exercise her legal judgment consistent with their directions.  Her renewed complaints indicate that they were right.


Tags: Whelan


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