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Ralph Nader Calls For Ethics Investigation
Ralph Nader
P.O. Box 19312
Washington, D.C. 20036
June 13, 2005
H. Marshall Jarrett, Counsel
Office of Professional Responsibility
950 Pennsylvania Avenue, N.W., Suite 3529
Washington, D.C. 20530
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,
In give-and-take over the reasons for the turnaround, the trial judge,
Gladys Kessler, suggested that perhaps "additional influences have been
brought to bear on what the government's case is." This is not an
auspicious way to usher in the reign of the new attorney general,
Alberto Gonzales. (1)
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,
Before his appointment in the Justice Department in 2001, McCallum had
been a partner at Alston & Bird, an Atlanta-based firm that has done
trademark and patent work for R.J. Reynolds Tobacco. In 2002, McCallum
signed a friend-of-the-court brief by the administration urging the
Supreme Court not to consider an appeal by the government of Canada to
reinstate a cigarette smuggling case against R.J. Reynolds that had been
dismissed. (2)
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.
However, it is obvious that Mr. McCallum's participation presents both
the appearance and reality of a conflict of interest. This conflict of
interest appears equally to have been present in the R.J. Reynolds
smuggling case, a case that, incidentally, turned on application of
civil RICO rules. (3)
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,
If you are an attorney, you will have to disqualify yourself in cases
you handled before entering the Government, and from other matters
involving your former law firm or clients for a certain period, usually
several years. (4)
The governing federal regulations stipulate that a lawyer in Mr.
McCallum's position should recuse himself:
Unless the employee is authorized to participate in the matter under
paragraph (d) of this section, an employee shall not participate in a
particular matter involving specific parties when he or the agency
designee has concluded, in accordance with paragraph (a) or (c) of this
section, that the financial interest of a member of the employee's
household, or the role of a person with whom he has a covered
relationship, is likely to raise a question in the mind of a reasonable
person about his impartiality. Disqualification is accomplished by not
participating in the matter. (5)
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:
Any person in Governmental service should: Put loyalty to the highest
moral principles and to country above loyalty to persons, party or
Government department. (6)
So too did he apparently violate the rules established by Executive
Order 12,731 "Principles of Ethical Conduct for Government Officers and
Employees;"
Employees shall act impartially and not give preferential treatment to
any private organization or individual. (7)
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
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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.
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