Where there’s smoke…

June 20, 2005

I’m glad to know the Justice Department’s Office of Professional Responsibility has agreed to investigate whether political interference influenced the government’s decision to ask the tobacco industry to pay $10 billion, instead of the $130 billion previously recommended by a government expert witness. There are a lot of questions here that deserve answers.

For example, if there’s an innocent explanation for this, I’d like to hear it.

A top Justice Department official threatened to remove a government expert from its witness list if he did not water down his recommended penalties for the tobacco industry, the witness said in an interview yesterday.

Harvard University business professor Max H. Bazerman said a career trial lawyer told him senior Justice officials wanted him to change his recommendation that the court appoint a monitor to review whether it was appropriate to remove senior tobacco company management. Bazerman said the lawyer was passing along the “strong request” the week before Bazerman was to take the witness stand on May 4 in the government’s landmark racketeering case against the industry.

Bazerman refused to go along — he said he’d be lying under oath if he changed his testimony — but the fact that he was even asked is a little bizarre. The witness didn’t want to water down his recommended penalties, the career lawyers on the case didn’t him to either, but Justice Department senior litigation counsel Frank Marine and Associate Attorney General Robert McCallum Jr. apparently made the call and reportedly threatened to take Bazerman off the government’s witness list unless he changed his testimony.

To be fair, it’s important to note that Bazerman refused to make the change but was nevertheless allowed to testify. Still, he was pressured to weaken his position on sanctions, as were two other government witnesses.

There has to be a reason why. Bazerman thinks he knows.

“I want the government to behave appropriately. I can’t think of an honest, plausible reason other than political interference for what they’re doing,” he said of political appointees at Justice.

There are plenty of PLAUSIBLE reasons for why the Justice Department would behave this way, but no HONEST reasons. Lying Fucking Bastards.

  • The tobacco hypocracy of our government for the last thirty years is the even greater scandal. I can never understand how the FDA will go ballistic and ban ephedra when less than a dozen ‘roid freaks take too much and have heart attackss, but no-one will take the stand to ban tobacco outright (if the logic is that the government has the right to control what people do with their bodies, which social medicine will entail eventually), which kills directly or indirectly more people than anything else in this country.

  • I can’t believe it, Force, but I actually agree with you. There are probably worse HIDDEN scandals (e.g., the syphilis experiments on African-american men, and the forced sterilization of mentally handicapped persons), but the tobacco subsidies and continuing government support is right out there in the open, and has been there for about FIVE decades.

    Still, your example is a particularly egregious one of government hypocricy, which has become an art form under BushCo and their cohort. Lying Fucking Bastards.

  • We shouldn’t ban tobacco, we should be better at ferreting out illicit and criminal corporate entities, which is what the majority of American tobacco companies are. Tobacco might be bad for you, but what they sell is not very much like the natural product.

    Besides, if you don’t want the government taking your gun, it’s a good bet you don’t want them taking your cigarettes. Guns kill you a lot faster, but I don’t want any government official that far into my world.

    Bottom line is that Justice Dept. shouldn’t be so easy for political hacks to influence. If we can agree that corporations can and do taint the thinking and action of government officials (and, dear, God, they surely do), then we shouldn’t allow that reach to invade the precincts of investigative justice. Apparently, shame is no longer enough.

  • If I were at Justice, I’d be concerned about possible witness-tampering.

    In Federal criminal matters, 18 USC 1512(b) says that someone who “knowingly … threatens … another person, or attempts to do so … with intent to … influence … the testimony of any person in an official proceeding”, is guilty of witness tampering. Don’t know to what extent there are civil prohibitions, but then again, this is a RICO action.

    Then too, the judge here doesn’t sound like she’s prone to take much guff:

    “The controversy [over the substantial reduction in requested damages] also prompted an unusual exchange in court Wednesday, when tobacco company lawyers gave closing arguments in the 8 1/2 -month trial. Ted Wells, an attorney for Philip Morris USA, said the sudden change provided ‘the most powerful evidence … that this whole thing is a house of cards.’

    Kessler replied: ‘Perhaps it suggests that there are some additional influences being brought to bear on what was the government’s case.'”

  • I’m no fan of the Bush Administration, but I CAN think of an innocent explanation for this — lawyers don’t put expert witnesses on the stand who will not further their position or their litigation strategy. This does not mean that expert witnesses lie, or that they only say what they are paid to say. (And it doesn’t sound here like they asked Mr. Bazerman to perjure himself, just to consider a change of opinion.) What it DOES mean is that lawyers find — or, at least, try to find — expert witnesses that support the lawyers’ clients’ positions. Lawyers are trying to convince a judge or jury to reach a particular position — the client’s position. And if the client — here, the government — changes position, that necessarily affects whether the lawyers keep the witnesses they’ve retained.

    A trial is not an academic debate, nor a search for truth amongst disinterested observers. It is a competition between interested advocates to convince the finder of fact of a particular position, with ethical limitations imposed on the means of competition. And the particular issue here — what kind of injunctive penalty to impose on the tobacco companies — is exactly the kind of issue that relies more on persuasion than discernment to resolve. In other words, it’s a value judgment. If the administration changes its mind on the penalty it wants to impose — an essentially political decision — why shouldn’t they alter their damages case accordingly? Why shouldn’t there be “political interference” in a political matter?

  • What it DOES mean is that lawyers find — or, at least, try to find — expert witnesses that support the lawyers’ clients’ positions.

    That’s the point, Eric: the lawyers were asking the witnesses to have an opinion AGAINST the client’s position.

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