McCallum Questioned About Tobacco Case

Associate Attorney General Robert McCallum cups his ear to hear a question during a news conference at the Justice Department in Washington in this May 13, 2004 file photo. A former Justice Department lawyer says McCallum misled Congress about a landmark lawsuit against the tobacco industry. (AP Photo/Lauren Victoria Burke, File) (Lauren Burke - AP)

Eubanks said McCallum mischaracterized a court order in his statements to Capitol Hill, making it appear that U.S. District Judge Gladys Kessler criticized the government's embrace of smoking cessation as a remedy in the lawsuit. McCallum cited the judge's order in explaining why he reduced the government's request.

Eubanks pointed out that the judge later rejected the tobacco industry's arguments and allowed Eubanks' expert witness to testify that the companies should pay $130 billion for smoking cessation.

McCallum said the decision to cut the amount of money being sought stemmed from a federal appeals court ruling in the case that requires forward-looking remedies aimed at preventing future violations rather than penalties for past misdeeds. McCallum said career attorneys in the department's organized crime and racketeering section recommended the change.

In his comments to the Senate, McCallum noted an order from the judge that the appeals court ruling "struck a body blow to the government's case."

Eubanks said the "body blow" language had nothing to do with a smoking cessation remedy and "to make that suggestion is misleading."

In his written statements to the Senate, McCallum said he had "no personal involvement even as to supervision and oversight, in the vast majority" of proceedings in the tobacco case.

Eubanks said the statement is technically accurate, but "extremely misleading."

"I had the guy's cell phone number and he told me to call him any time on the case and occasionally I did," said Eubanks. "On the significant and important things, he made it very clear that he was to remain in the loop and involved.

"Whenever we had meetings on this, Robert was at all of them, and we had a lot of them," said Eubanks. "This is a guy who's not involved?"

McCallum told the Senate that he had conferred with attorneys including the career lawyers leading the trial team, a characterization that Eubanks rejected.

"There was no conferring," said Eubanks. "I was taking orders."

At McCallum's direction, says Eubanks, political appointees at the department wrote almost every word of Eubanks' closing argument in which she asked the judge to order the industry to pay the reduced amount.

Eubanks has removed herself from her new employer's lawsuit against the Justice Department where she used to work.