By Carol D. Leonnig
Washington Post Staff Writer
Monday, June 20, 2005
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.
The government says the tobacco industry engaged in a 50-year conspiracy to defraud the public about the dangers and addictiveness of smoking.
Bazerman said the lawyer told him the change -- opposed by the career lawyers on the case -- had come from Justice Department senior litigation counsel Frank J. Marine and Associate Attorney General Robert D. McCallum Jr.
Bazerman declined to name the lawyer, saying he was concerned the person could face retaliation from Justice Department superiors. Bazerman said the lawyer told him that McCallum had threatened removing Bazerman from the government's witness list and prohibiting him from testifying if Bazerman did not change his testimony. In the proposed change, Bazerman said he was expected to say that appointing a monitor to consider removing senior management would likely be legally inappropriate under certain circumstances. Bazerman said he refused to make the change and was ultimately allowed to testify May 4.
"I would have felt I was lying under oath, and I couldn't do that," Bazerman said. "I thought then, and I believe now, that it was inappropriate influence to weaken the government's case against the tobacco industry."
Bazerman testified that a court monitor should be appointed by the judge to study whether future violations could be prevented by removing longtime senior management. Bazerman said he does not know why the government allowed him to testify.
In the six-year lawsuit, the Justice Department has argued that the United States' six largest tobacco companies lied about the dangers of smoking. The Justice Department stunned anti-smoking activists and members of Congress two weeks ago by announcing in the closing days of the eight-month trial that the government would cut its demand for an industry-funded smoking-cessation program from $130 billion to $10 billion.
Bazerman said in an interview yesterday that he is coming forward now because of recent reports in The Washington Post and the Los Angeles Times that the career trial team had pressured senior political appointees at Justice to weaken their case and urged other witnesses to soften their testimony against the industry.
"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.
Justice Department spokesman Charles Miller said yesterday that Bazerman's interpretation of the government's motives was inaccurate, but he declined to give details of the government's reasons.
"The issues discussed with Dr. Bazerman regarding his testimony were focused on ensuring that the department's proposals in this case complied with the long-standing department policies that apply to all racketeering cases the government brings, policies that substantially predate this administration," Miller said.
Bazerman describes a career trial team, lead by lawyer Sharon Eubanks and her deputy, Stephen Brody, increasingly under assault from all sides in the final months of the racketeering trial.
"It was clear they were fighting on multiple fronts, not just with the tobacco industry but with their own government," he said. "They were asking me to do things and it was obvious their heart wasn't in it."
Allegations of last-minute interference center on McCallum and Marine, who has had a limited role in the government's case. As senior Justice officials pressured the trial team to reduce the smoking-cessation program it wants the tobacco industry to fund, officials proposed that Marine oversee the drafting of the government's closing statement, said sources involved in the case.
Louis Clark, president of the Government Accountability Project, which is representing Bazerman, said the professor's account should prompt the government to conduct a probe independent from the Justice Department.
"In our 28 years of experience, we've learned when there's this much smoke, there's definitely fire, and we as Americans need to find out where it's coming from," Clark said.
Today, U.S. District Judge Gladys Kessler, who is set to decide whether the industry engaged in a conspiracy and whether to impose penalties upon the companies, is to meet in a closed-door session with government and tobacco lawyers.
Sources close to the case say that they expect Kessler will question lawyers about the government's last-minute reversal of its recommended penalties. Numerous members of Congress have called for an investigation of political interference into the case, and on Friday, four senators demanded that McCallum be removed from the case or future settlement talks. The Justice Department's Office of Professional Responsibility has begun investigating the allegations.