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Telling Tales of the Tobacco Trial ($$) 

Press reports missed key parts of the story.
Jump to full article: Law.com, 2005-07-25
Author: KENNETH N. BASS

Intro:

On the heels of these stories, anti-tobacco activists, newspaper editorialists, and leading Democratic Party figures have called for an investigation into the DOJ’s actions, and the DOJ inspector general has reportedly begun looking into the matter.

Unfortunately, those same press reports ignored key facts that suggest a far more benign explanation for the DOJ’s actions. . . .

Now, of course, the fire is spreading. Politicians are calling for an investigation; interest groups are howling; and the press, which paid so little attention to the case for so long, finally has itself a story, albeit one of dubious lineage. . . .

Yet this new remedy was practically dead on arrival, and here is where the difficulty begins with the press. In Order No. 886, entered on Feb. 28, a clearly frustrated Judge Kessler wrote that while it would be “premature” to rule out any of the government’s nondisgorgement remedies, she was concerned that most of them read as if the appeals court had “never written” its intervening decision.

Yet the government went forward. The court repeatedly asked during the remedies phase, and then again in closing arguments, how the government could square the cessation program with the appellate ruling, but no one had a satisfactory answer.

Indeed, the government’s main witness on the cessation program, University of Wisconsin Medical School professor Michael Fiore, testified that the DOJ lawyers told him not to worry about how a cessation program would prevent future violations of the law, because “the lawyers” would deal with it.

Problem is, the only argument offered by the DOJ lawyers was that if fewer people smoked, there would be less incentive for the industry to violate the law—a notion of which the judge appeared skeptical. . . .

While Gene Borio runs a notably anti-tobacco Web site, www.tobacco.org, he called it as he saw it, frequently criticizing the DOJ lawyers and praising the judge for her patience and perseverance. Like Judge Kessler, he kept wondering aloud, so to speak, when the DOJ would come up with a coherent legal rationale for a cessation program that would satisfy the appeals court’s standard. . . .

Recent press coverage of charges that DOJ officials tried to interfere with the testimony of two witnesses has also failed to lay out all the key facts. . . .

Finally, there is the matter of the various unnamed lawyers associated with the DOJ trial team who leaked information to the press. They have done a profound disservice to their own case by talking out of school and suggesting there is dissension in their ranks. Any one of them could have gone to the DOJ Office of Professional Responsibility or the inspector general if they truly thought there had been political meddling. But going to the press only raises serious questions about their motives.

By the same token, DOJ Civil Division chief Robert McCallum, who has been singled out in the press as a source of “interference,” should have known better than to get involved. . . .

Now, of course, the fire is spreading. Politicians are calling for an investigation; interest groups are howling; and the press, which paid so little attention to the case for so long, finally has itself a story, albeit one of dubious lineage.

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