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Ralph Nader June 13, 2005 H. Marshall Jarrett, Counsel Dear Mr. Jarrett: This is a formal ethics complaint against Associate Attorney General Robert D. McCallum, Jr. in connection with U.S. v. Philip Morris Inc., et. al., before the United States District Court for the District of Columbia. On June 7, the U.S. Justice Department, allegedly at the direction of Mr. McCallum, dramatically departed from its presumed position in the litigation in a way that blatantly favors the tobacco industry at the expense of the public interest. During trial, the government offered testimony on the costs of smoking cessation by Dr. Michael C. Fiore, widely considered the nation’s leading expert on the subject, who led a government blue-ribbon panel on smoking cessation. In his testimony, Dr. Fiore offered an evidence-based estimate of the cost of a national smoking cessation program: $5.2 billion a year for 25 years, for a total of $130 billion. However, on June 7, the Justice Department abandoned, without explanation, Dr. Fiore's evidence-based estimate and asked only for smoking cessation program funded at the level of $2 billion per year for five years. This sudden shift shocked every observer of the litigation, including tobacco industry attorneys, who publicly mocked the move and said it demonstrated the government's case was in disarray. The day after the downgrading of the government's remedy request, Mr. McCallum offered a purported explanation to the media: that the government was seeking to comply with the terms of an appellate court decision that required all remedies to be forward-looking. This was transparently a rationale chasing an already-reached, politicized decision. The government offered no explanation of how it would limit the cessation treatment to newly addicted smokers, and commentators quickly came to a consensus that the government had not proposed a workable plan. Especially in light of the shift in requested cessation remedy, one must question as well the government's failure to appeal to the Supreme Court the appellate court opinion that Mr. McCallum says required the scaling back of the cessation remedy -- and that clearly undercut the farthest-reaching remedy the government had sought: disgorgement of ill-gotten tobacco industry profits from 1970 forward. According to published reports in the Los Angeles Times and Washington Post, there is a simple explanation for the reversal in the government's case: political pressure applied by Associate Attorney General Robert McCallum and others on the Justice Department attorneys responsible for the case. The judge in the case, Judge Gladys Kessler, insinuated as much herself. Comments the New York Times,
This political interference appears all the more egregious, and ethically problematic, because Mr. McCallum has reportedly previously worked for a firm that represented one of the defendants in the case, R.J. Reynolds. According to the Los Angeles Times,
According to the Los Angeles Times account, the Department of Justice ethics office had cleared McCallum to take part in the litigation against the tobacco industry. The office acknowledges that McCallum sought guidance in connection with earlier tobacco-related litigation and received clearance, but does not say whether any written record exists.
The common sense observation that Mr. McCallum should have recused himself from the tobacco cases is reflected in federal and department ethics rules that he appears to have violated. The Department of Justice's Ethics Handbook states simply,
The governing federal regulations stipulate that a lawyer in Mr. McCallum's position should recuse himself:
The exception in this provision -- the reference to paragraph d -- permits an employee to participate in a matter about which he has an apparent conflict if he is authorized by an appropriate agency designee. Mr. McCallum apparently was so authorized. But it is unclear what the basis of that authorization was, nor what it might have been; and a pro forma clearance does not excuse Mr. McCallum from upholding the ethical standards of a government employee. Moreover, it is not only through the conflict of interest that Mr. McCallum appears to have violated ethical rules. If he in fact did override the government lawyers managing the tobacco RICO litigation in the reported fashion, he inappropriately conferred benefits upon the tobacco industry defendants, by removing them from the jeopardy of cessation program payments 13 times greater than what the government ultimately requested (though the judge retains the authority to issue remedies beyond those requested by the government). In so doing, he apparently violated the most basic commandment of the Code of Ethics for federal employees:
So too did he apparently violate the rules established by Executive Order 12,731 "Principles of Ethical Conduct for Government Officers and Employees;"
When a senior Justice Department official allows loyalty to narrow political or economic interests to trump the public interest, and in the process prevents subordinate government attorneys from following their conscience and professional duties in pursuing the public interest, he has committed a severe ethical violation. The official himself has betrayed his highest duty -- to protect and advance the public interest -- and so too has he subverted government attorneys from respecting their primary loyalty, to the public good.[8] Such ethical transgressions are all the more serious when the underlying matters at stake affect, literally, millions of lives. All of the facts surrounding Mr. McCallum's intervention in the tobacco litigation are not yet known, but enough is known to warrant your office investigating his reported interference in the litigation, his potential conflicts of interest, and his apparent violation of rules proscribing subordination of the public to private interests. The public interest demands no less. Sincerely, Ralph Nader 1) "Torpedoing a Tobacco Suit," The New York Times, June 10, 2005. 2) Myron Levin, "U.S. Eases Demands on Tobacco Companies," Los Angeles Times, June 8, 2005. 3) Attorney General of Canada, Petitioner v. R.J. Reynolds Tobacco Holdings, Inc., et. al. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit, Brief for the United States as Amicus Curiae, available at < http://www.usdoj.gov/osg/briefs/2002/2pet/6invit/2001-1317.pet.ami.inv.html>. 4) Department of Justice Ethics Handbook, available at: < http://www.usdoj.gov/jmd/ethics/text/generaltxte.htm>. 5) 5 CFR 2365.502 (e) 6) Code of Ethics for Government Service, House Concurrent Resolution 175, 85th Congress, 2d session (1958). 7) Executive Order 12,731, Section 101 (h). 8) See Ralph Nader and Alan Hirsch, "A Proposed Right of Conscience for Government Lawyers," volume 55 of Hastings Law Journal, pp. 311-331 (December 2003), arguing that it is wrong to force government attorneys to compromise their ideals or constitutional convictions, and that doing so makes public service less attractive to all current and potential government lawyers. Running roughshod over the conscience and professional obligations of dedicated public servants adds another dimension to Mr. McCallum's apparent ethical violations. Return to Nader Page Return to Essential Information |