Gonzales and Tobacco

The latest allegations that President Bush and his attorney general, Alberto Gonzales, "politicized" the Justice Department concern a lawsuit that the federal government brought against the tobacco industry. The Washington Post aired the charges on its front page yesterday, reporting, "The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government's racketeering case."

The Washington Post quoted the leader of the Justice Department team, Sharon Y. Eubanks, as charging that "Bush loyalists in Attorney General Alberto R. Gonzales's office began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers."

Let us just say that this is one allegation of politicization of the Justice Department on which these columns can speak with some authority, because we were urging it. In a March 22, 2004, editorial, we wrote, "the legal system in this country has gone so far off the rails that an industry can pay $246 billion in damages for marketing a legal product — and then still, a few years later, face more litigation, initiated by the federal government, seeking $280 billion." We called it "regulation by litigation."

One of the things we warned of is that the government's theory of the case — "that it constitutes racketeering to make public statements that are out of step with prevailing medical views" — flies in the face of the First Amendment guarantees of freedom of speech, not to mention scientific innovation. We wrote, "The president talks a good game about tort reform. He makes it sound like he really understands the way this kind of costly litigation has a detrimental effect on jobs. But if he really wants to do something about it, the place to start is telling his attorney general to shut down this racket."

We returned to the topic again on September 20, 2004, the day before Judge Gladys Kessler was scheduled to begin hearing United States of America v. Philip Morris, Inc. We noted that the federal complaint was "brought in part under the Racketeer Influenced and Corrupt Organizations act, a law passed in 1970 that was intended for use against gangsters, not businesses. The complaint, nevertheless, dwells on actions that took place in 1953, 1954, and 1964. The companies thus stand accused of violating a law that did not exist at the time they are alleged to have violated it."

We noted that the complaint accused the companies of maximizing their profits. Yet had they failed to do so, they'd no doubt be facing shareholder lawsuits, some of them from the tobacco-stock-holding pension funds of the same state governments that sued the tobacco firms to recover health care costs. Most obnoxious, we wrote, was the Justice Department's idea that the tobacco companies, rather than the smokers or the federal government, should bear the entire cost of health care for smokers, even though there have been health warning labels on American cigarette packages since 1966, and the federal government spent hundreds of millions of dollars over 70 years on crop subsidies to tobacco growers.

The federal government earned revenue from taxes on cigarettes, and it sold cartons of them at military post exchanges. We concluded, "In his speech to the Republican National Convention in New York, President Bush spoke of the need to protect workers ‘from the explosion of frivolous lawsuits that threaten jobs across America.' One way for Mr. Bush to protect workers from such lawsuits is by telling his Justice Department to drop this one."

In the event, Mr. Bush did not tell his Justice Department to drop this case. The "politicization" alleged in the Washington Post article is that the federal government's monetary demand in the case was dropped to $10 billion from $130 billion. After a lengthy trial, Judge Kessler, an anti-tobacco judge appointed by President Clinton, found no legal basis even for the $10 billion penalty. It strikes us that the most political action involving this case was the decision by Janet Reno in the Clinton administration, heavily supported by campaign contributions by anti-tobacco trial lawyers, to bring it in the first place.

One of the reasons we have elections is to allow voters, rather than unelected career bureaucrats, to guide government policy. If the voters wanted a Justice Department inclined to regulate through litigation, they could have elected Senator Kerry — or any Democrat in thrall to the tort bar. Even under a Republican administration, the tobacco companies were forced to spend tens of millions of dollars defending this litigation. If there was any error in the handling of the tobacco case, it was that Mr. Bush failed to exercise sufficient political control over the Justice Department. He allowed a politicized Clinton administration racketeering prosecution of tobacco executives to go forward at great expense to the government and the economy even though it had little if any legal basis and even though it contradicted the president's compact with the voters at the polls.