President Bill Clinton in 1994. (Photo: Patrice Gilbert/LT.)
The latest release of previously secret documents from the Clinton White House offered a behind-the-scenes look into how the administration handled a U.S. Supreme Court decision and a billion-dollar fraud lawsuit against major tobacco companies.
Here are those and some other high points from about 4,000 pages of documents —released Friday by The National Archives—that includes correspondence between Bill and Hillary Clinton and their aides:
1) Deciding To Sue Big Tobacco
One year before the federal government sued the tobacco companies in September 1999, former Clinton advisers Bruce Reed and Elena Kagan, now a U.S. Supreme Court justice, told Clinton and Vice President Al Gore in a memo that U.S. Department of Justice lawyers advised against litigation.
“DOJ attorneys believe … that they should not bring suit unless they would stand a reasonable prospect of actually winning the suit at trial and on appeal (i.e., putting aside all settlement possibilities),” Kagan and Reed wrote. “The attorneys have concluded that under existing law governing Medicare and other potential federal claims, they cannot meet this standard.”
A Washington federal trial judge ruled in 2006 that the tobacco companies violated federal racketeering laws.
In 1998, according to Reed and Kagan’s memo, Justice Department lawyers believed the federal government could not aggregate in a single lawsuit millions of individual claims for Medicare recipients’ tobacco-related health care costs.
The Justice Department believed a better course would be to try to reach a settlement with the tobacco companies without filing a lawsuit.
Kagan and Reed said at least some of the tobacco companies seemed open to a settlement, given settlement talks at the time with state authorities. “The principal outside counsel for Philip Morris (Meyer Koplow) recently suggested to Elena that his client wants to resolve all government claims against it, including potential claims by the federal government,” they wrote in the memo. Koplow today is a litigation partner at Wachtell, Lipton, Rosen & Katz.
Settlement negotiations carried certain risks, Reed and Kagan noted, since the government wouldn’t have as much leverage without an actual lawsuit. However, they said, the “advantage of entering into negotiation is that we might be able to get something done on tobacco without Congress—and if not, we could lay the groundwork for legislative action next year.”
In November 1998, tobacco companies reached a $246 billion master settlement with 46 states and other U.S. territories; the four additional states—Florida, Minnesota, Mississippi and Texas—had already reached agreements by that time.
In September 1999, the federal government filed its lawsuit, seeking billions of dollars spent on tobacco-related health care costs for Medicare recipients, veterans and federal workers.
In ruling for the government, U.S. District Judge Gladys Kessler ordered the tobacco companies to stop using deceptive marketing practices and pay for public “corrective” ads detailing the health risks of smoking. She found that the case law did not allow “backward-looking remedies,” such as requiring the companies to pay back “ill-gotten gains.”
2) Changing Response to a Supreme Court Ruling
Clinton issued a short statement in June 1998 saying he “was pleased” with the U.S. Supreme Court’s ruling in Bragdon v. Abbott—but the documents show how his staff prepared for the decision to go the other way.
“Essentially, this case will determine whether people living with HIV but not yet symptomatic are protected by the Americans With Disabilities Act,” White House adviser Todd Summers wrote in an email that included a draft statement for Clinton.
“The statement is designed to respond to a negative decision by the Court (that the ADA does not provide such protection),” Summers, the Clinton administration’s deputy director for the White House Office of National AIDS Policy, wrote. “Once the decision is released, we will work with the White House Counsel’s office to determine if the proposed POTUS statement is applicable. We will then notify you that the statement should be released by the WH Press Office.”
Among other White House advisers, the email was sent to then-White House senior counsel Robert Weiner, now a partner in Arnold & Porter’s business litigation practice, and Kagan.
The proposed statement started: “I sincerely hope that today’s decision by the Supreme Court in Bragdon v. Abbott will not weaken the protections offered by the landmark Americans With Disabilities Act. The ADA was enacted with strong bi-partisan support to protect Americans with disabilities from discrimination. The Administration filed a brief in this case arguing that people with HIV are disabled whether or not they are symptomatic, and that the protections offered by the ADA therefore apply.”
Diana Fortuna, a White House adviser, seemed to respond with the right call: “I find it hard to sign off on language before we know the content/reasoning of the opinion. I understand that DOJ’s civil rights division wants to wait to comment, too.”
The Supreme Court sided, 5-4, with the administration. And Clinton’s statement took a different tone from the draft.
“The ADA was enacted with strong bipartisan support to protect Americans with disabilities from discrimination. My administration argued successfully in this case that people with HIV are disabled whether or not they have developed the symptoms of AIDS,” Clinton said in the statement.
“I am firmly committed to protecting all Americans, including those living with HIV and AIDS, from discrimination, and ensuring that each of us can benefit from all America has to offer. Today’s decision will help in fulfilling that commitment.”
3) Looking For Lawyers with a Big Heart
Clinton took potshots at lawyers during jokes for the Gridliron Dinner in 1993, according to the remarks included in the documents.
“I guess you heard I got caught again making what they call off-the-cuff remarks. Last week, I said I would appoint James Carville to the Supreme Court. I was kidding. But you know, it’s not really all that far-fetched. James is a lawyer. And although he’s taken a lot of criticism for being so single-minded and driven; he’s considered quite normal … on his planet.
“And what’s the worst that could happen? If the Senate confirms James for a life term, suddenly I am going to have eight more openings to fill. I am looking at nominees to fill the robes of Associate Justice White, and I only have two litmus tests: The candidates must be lawyers and they must have a big heart. And, if after four years, we haven’t found one, we’ll accept any lawyer who has a heart.”