Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Just days before beginning the largest civil racketeering trial in U.S. history, the Justice Department held a press briefing to tout the strengths of its $280 billion case against the tobacco industry. Staging news conferences for high-profile cases is an age-old tradition in the Justice Department. Attorney General John Ashcroft and other high-ranking DOJ officials routinely go before the cameras to laud the latest terrorist capture or money-laundering bust. DOJ trial lawyers use the publicity to make a name for themselves before a national press corps and to put pressure on defendants, juries, and judges. Despite the size of the case, there has been a notable absence of public comment from Ashcroft or his deputies as the tobacco trial draws near. The Sept. 13 briefing was for “background” information only, meaning reporters could not name any of the DOJ officials who spoke. Tobacco lawyers, lobbyists and public relations specialists say the lack of public support from high-ranking officials signals the political sensitivity within the Justice Department and the Bush administration regarding the case. Justice may not be willing to dismiss the action, but it will not publicly embrace it either. “Tobacco remains a politically sensitive and explosive issue,” says a lobbyist for the tobacco industry, who asked not to be named. “If you’re the administration, aren’t you better off letting it play itself out?” The trial in United States v. Philip Morris USA Inc., et al., is scheduled to begin today before Judge Gladys Kessler of the U.S. District Court for the District of Columbia. The bench trial is expected to last at least six months and include nearly 300 witnesses. The government is seeking a host of court-ordered reforms and wants the tobacco industry to disgorge $280 billion in profits. Without Ashcroft or another official to lead the charge, the public face of the government’s tobacco case has been left to anti-smoking advocates such as the Campaign for Tobacco-Free Kids and the Tobacco Control Resource Center. At a press briefing last week, William Corr, executive director of the Campaign for Tobacco-Free Kids, expressed his confidence in the DOJ tobacco team — led by career DOJ lawyer Sharon Eubanks and made up of roughly 35 attorneys — but reminded reporters that the Bush administration has not fully supported the litigation. “The record of this administration is not good on this,” Corr said, referring to efforts by the Bush administration to settle the case in 2001. “We are hopeful now, at trial, the case will proceed without any interference [from the administration].” Meanwhile, the Altria Group Inc. — parent company of Philip Morris — has mounted a full-scale public relations assault on the suit. Since the case was filed five years ago, Altria has been holding regular press conferences to declare the government’s case a weak and expensive effort to get the tobacco industry to change the way it sells cigarettes. Altria officials claim many of those reforms were already agreed upon and implemented when it settled a massive civil suit brought by several states in 1998. On Sept. 15, Altria held an hour-long phone conference with reporters and has two more briefings planned for this week. William Ohlemeyer, Altria vice president and associate general counsel, said at the Sept. 15 briefing that while he is confident the defense will prevail at trial, he does not expect the Justice Department to drop the case anytime soon. “This case has survived one election already … and we’re still here,” said Ohlemeyer. “I’m not naive, but I’m focused on getting this case off next week.” To some who have been observing the suit, the simple fact that the tobacco case survived a four-year term in the Bush administration is remarkable. Despite early attempts to derail the litigation, the case has received more than $96 million in funding over the past three years. “Many people, including myself, are perplexed that it has survived,” says Damon Ansell, chief of staff at Americans for Tax Reform, an organization that opposes the suit. EARLY FANFARE In September 1999, the government’s case against the tobacco industry was filed with much fanfare and public remarks from President Bill Clinton and Attorney General Janet Reno. The suit named nine tobacco companies and two industry groups as defendants and sought to recover billions of dollars the federal government spent treating smoking-related diseases over a three-year period. The claims mirrored those brought by 46 state governments and the District of Columbia, which settled with the tobacco industry in 1998 for $246 billion to be paid over 25 years as well as a host of other industry reforms. The racketeering counts of the case alleged that for 50 years tobacco executives conspired to defraud the public by minimizing the health risks to smokers. The case ran into funding problems almost immediately after it was filed, as Republican lawmakers in the House and Senate pushed for legislation banning the use of money from other agencies to pay for the litigation. That move failed, and Justice ultimately budgeted $23.2 million for the suit. In September 2000, Judge Kessler threw out the two claims seeking reimbursement of health care costs, but allowed the two racketeering counts to go forward. When George W. Bush won the election and picked Ashcroft as his attorney general, it looked as if the case would not last. After all, Ashcroft had been a staunch opponent of tobacco regulation and the suit while a member of the Senate. A flurry of news reports in April 2001 stated that the tobacco litigation was not being funded and that dismissal or settlement of the case was imminent. Democrats on Capitol Hill, who had a majority hold on the Senate for most of 2001, used their power to call a hearing focusing on the tobacco litigation. Sen. Richard Durbin, D-Ill., who presided over the Sept. 5 Judiciary Committee hearing, blasted the Justice Department for leaking information that Durbin said was intended to damage the case. “A number of statements, unofficial and official, have indicated publicly the administration thinks that this case is weak,” Durbin said, according to a transcript, “thus undermining any potential settlement negotiation, and reinforcing the perception that the government is not interested in seriously pursuing this case.” At the hearing, Stuart Schiffer, acting chief of the Civil Division, testified that there had been no interference from the White House or political appointees at Justice. Schiffer, a career Justice official, also said the decision to seek a settlement was his alone. The tobacco team eventually received more than $38 million for fiscal year 2002, and from that point on, there have been no more rumblings that the case would go away. “Once they funded it, once they allocated money to it, they couldn’t justify dropping it,” says William Schultz, a deputy assistant attorney general in the Clinton administration who worked on the suit. But making it to trial does not necessarily rule out settlement or dismissal by the Justice Department. For one, the disgorgement claim in the case has already been appealed, with arguments set for mid-November. If the U.S. Court of Appeals for the D.C. Circuit finds that disgorgement cannot be sought, then the case would become an easy target for critics who say too much money has already been spent pursuing the matter. Additionally, if Bush wins re-election, the president could force Justice to drop or settle the case. If he loses, Bush could simply order the case dismissed before leaving office.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.