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DOJ OFFFICAL TRIES TO PUT OUT TOBACCO FLAP The timing couldn’t have been worse. After nearly six years on the D.C. federal court docket, eight months in trial, and hundreds of millions of dollars spent on litigation, the Justice Department waited until closing arguments last week to say it was severely scaling back the penalties it was seeking against the tobacco industry. Instead of $130 billion to fund a 25-year smoking cessation program that would include all smokers, DOJ lawyers said that just $10 billion was needed for a five-year program focused on future smokers. The about-face in the largest civil racketeering trial in American history occurred June 7 before Judge Gladys Kessler in a courtroom packed with national media. The move immediately fueled allegations that political appointees in the Justice Department, specifically Assistant Attorney General Robert McCallum Jr. of the Civil Division, had pressured DOJ’s tobacco trial team to make the change. McCallum’s history in private practice at Atlanta’s Alston & Bird, which represented RJ Reynolds Tobacco Co. in trademark actions, was aired as a possible motive. Two House Democrats called on DOJ Inspector General Glenn Fine to investigate charges of political influence. In court, tobacco lawyers used the controversy to argue that the government’s entire case is unfocused. “The fact that the government changed the program almost on a dime from $130 billion to $10 billion is evidence in and of itself that this whole thing is a house of cards,” said Theodore Wells Jr., a partner at New York’s Paul, Weiss, Rifkind, Wharton & Garrison who represents Philip Morris USA, during closing arguments. When pressed by the media, McCallum provided a lawyerly, not a political, reason for the move. He said the decision to seek the $10 billion was based on the opinion from the U.S.Court of Appeals for the D.C. Circuit that stated any remedies for racketeering fraud must be forward-looking. The Justice Department, he said, did not reduce its proposed penalties, and the media “misunderstood” what DOJ lawyers told the court. McCallum said details on what the government is requesting — including the imposition of court monitors and advertising restrictions — will be spelled out in briefs that are due June 25.Kessler isn’t expected to issue a ruling for several months. — Tom Schoenberg FRESH HORSES Embattled House Majority Leader Tom DeLay (R-Texas) last week brought in more high-powered legal help, tapping former federal prosecutor and white collar criminal defense specialist Richard Cullen to assume a leading role in representing DeLay before the House ethics committee. But DeLay spokesman Dan Allen says that DeLay’s earlier choice to defend him, Ed Bethune, a lobbyist and former Arkansas congressman, isn’t being pushed out. “Ed Bethune still serves on Majority Leader DeLay’s team as an adviser and still provides counsel to the majority leader’s team,” says Allen. Bethune, 69, a partner in the D.C. office of Bracewell & Giuliani, did not return phone calls.”This is all consistent with Bethune being an adviser, but recognizing he’s at the stage of his career where he may not want to put in the hours required for this sort of investigation,” says Bobby Burchfield, the McDermott, Will &Emery partner who is coordinating DeLay’s legal efforts in Washington and Texas, where a political action committee affiliated with DeLay is the subject of a criminal probe. Cullen, based in the Richmond office of McGuireWoods, offered a statement: “My goal is to make sure people are going to be focusing on the facts of the case and not the politics.” – Jason McLure ENTER SANDMAN James Sandman, managing partner at Arnold & Porter, has been elected president-elect of the D.C. Bar. The results were announced last week. Sandman beat Anthony Epstein, a partner at Steptoe & Johnson, with 56 percent of the vote. He takes office June 23, when current President-elect John Cruden, deputy assistant attorney general of the Environment and Natural Resources Division at the Department of Justice, becomes president. “I am very honored to have been elected,” Sandman says, “and I look forward to doing my very best to serve the bar community.” According to the bar’s election board, 9,495 votes were cast out of the 58,463 ballots mailed to members for a 16 percent turnout. – Bethany Broida FROZEN FISHER The administration’s pick of Alice Fisher to head the Justice Department’s Criminal Division sparked controversy last week in the Senate Judiciary Committee. Democrats questioned her lack of prosecutorial experience and requested that the committee’s vote on her nomination be delayed a week. “I am concerned that she is nominated for one of the most visible prosecutorial positions in the country without ever having prosecuted a case, and she brings to the position minimal trial experience in any context,” said Sen. Patrick Leahy (D-Vt.). Fisher, who held the division’s No. 2 slot from 2001 to 2003, is a partner in the D.C. office of Latham & Watkins. She did not return a call seeking comment. Her nomination has received support from James Robinson, who ran the Criminal Division under President Bill Clinton. In a letter to the committee, Robinson called Fisher “extremely well qualified.” The Criminal Division is not the only major DOJ unit without a permanent leader. Civil Rights chief R. Alexander Acosta is leaving to serve as interim U.S. attorney for the Southern District of Florida. – Vanessa Blum IN BREACH For $80,000, it was the job of Washington lawyer and lobbyist Robert Johnson II to polish the image of a genocidal regime. Last month, a nearly 10-year legal battle over Johnson’s work for Aloys Uwimana, the Rwandan ambassador in the United States, ended in the U.S. Court of Appeals for the D.C. Circuit. Uwimana hired Johnson as Rwanda was being consumed by a bloody ethnic civil war in 1994. When the war ended, the successor rebels sued to recover the money paid to Johnson. Judges Harry Edwards, David Tatel, and Merrick Garland took Johnson, an international law attorney with Balch & Bingham, to task, upholding most of the District Court decision that Johnson had breached a fiduciary duty by failing to return the money even though the lobbying work was never done. Johnson was one of three members of the Rwanda Working Group, which included the late Washington lobbyist Edward van Kloberg. Uwimana, a Hutu, asked Johnson to help him and his family gain asylum in the United States after a Tutsi group had gained control of Rwanda and the genocide had ended. Tatel wrote the court’s opinion, saying that Johnson should have questioned Uwimana’s authority and “demanded evidence that Rwanda consented to its ambassador’s apparent looting of state coffers.” Johnson’s lawyer, Covington &Burling partner James Atwood, says his client believed he was doing the right thing. “This was the diplomatic equivalent of the fog of war,” he says. But Patton Boggs partner David Farber, who represented Rwanda pro bono, disagrees: “It was not a confusing time at all. They misused Rwandan money to support a genocidal regime at a time when it was as down as a country could be.” – Lily Henning ON APPEAL John Fisher, the longtime chief of the Appellate Division of the U.S. Attorney’s Office in the District, was selected by President George W. Bush to fill the open seat on the D.C. Court of Appeals created by the retirement of Chief Judge Annice Wagner. The Judicial Nomination Commission submitted three names to the president to replace Wagner — current Superior Court Judges Neal Kravitz and Anna Blackburne-Rigsby and Covington & Burling partner Phyllis Thompson — but Bush instead chose Fisher, who was on a slate of candidates for the previous vacancy. Bush also formally nominated Fisher’s boss, Kenneth Wainstein, as U.S. attorney for the District. Wainstein has been serving as interim U.S. attorney since Roscoe Howard Jr. resigned last year. While Wainstein will not comment on his own nomination, he says that Fisher will make a “tremendous judge.” – Bethany Broida FINDING RELIGION The D.C. Court of Appeals last week held that religious schools can make some hiring decisions without fear of court interference. The principal of St. Francis Xavier School in the District, Kathleen Pardue, sued the Archdiocese of Washington for racial discrimination after being forced to resign in 2002. Pardue claimed her firing was part of a larger effort to remove white principals. The archdiocese asserted that she had been asked to resign because of her “lack of commitment to a full program of regular religious instruction.” D.C. Superior Court Judge James Boasberg ultimately dismissed the lawsuit after determining that Pardue’s responsibilities related to religious education and “provid[ing] spiritual leadership in and for the school community” and her central role in furthering the spiritual mission of the Roman Catholic Church placed her claims under the “ministerial exception” to federal anti-discrimination statutes. An appellate panel, consisting of Judges Michael Farrell, Stephen Glickman, and Thomas Motley, agreed. Emmet Flood, a partner at Williams & Connolly, which represented the archdiocese, says that the decision “now makes explicit what was implicit in its prior decisions — namely that, in employment cases, a religious institution has the freedom to make hiring and firing decisions about people whose jobs serve a religious purpose.” – Hilary Lewis NAME GAME The legal search firm Major, Hagen & Africa is changing its name to Major, Lindsey & Africa. The name change is to honor the contributions of partner Jon Lindsey — and is due to the fact that partner Laura Hagen left for another firm last month. “It’s great to be in a sandwich with two giants of our industry such as Bob Major and Marty [Martha Fay] Africa,” says Lindsey, managing partner and co-founder of the firm’s New York office. As co-chair of MHA’s partner practice group, Lindsey, along with his colleagues, was instrumental in the growth of the practice that focuses on partners, groups, and mergers. The firm also announced the addition of two vice presidents, Tom Colberg and Tom Duvall, both former partners with PricewaterhouseCoopers consulting group. – Trey Wydysh

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