Senior Justice Department officials argued in a court filing one month ago that the government's demand for a $130 billion smoking-cessation program funded by the tobacco industry was a legal penalty in the landmark lawsuit and unaffected by a February court ruling that rejected other sanctions against the industry.
Last week, the same officials, including one who signed the May 12 document, surprised anti-tobacco activists and the tobacco industry by dramatically scaling back that proposal and demanding a $10 billion program. They said the cut, which came in the closing days of an eight-month trial, was necessary because the larger smoking-cessation program would not legally comply with the same February appeals court ruling.
The government lawsuit claims the industry engaged in a 50-year conspiracy to defraud the public about the dangers and addictiveness of smoking. Anti-smoking advocates said nothing changed legally between the government's May 12 defense of the stop-smoking program and last week's proposal, and said it is evidence that political considerations influenced the government's handling of the case.
Rep. Henry A. Waxman, (D-Calif.) said the government's court filing should be scrutinized by the Justice Department's Office of Professional Responsibility, which is investigating allegations of political interference in the case at the request of Waxman and seven other lawmakers.
"This brief shows that the department had confidence in the legal merits of its request . . . as recently as five weeks ago," Waxman said. "I am now even more concerned that this decision was made to benefit the tobacco industry, not the health of the American people."
William V. Corr, director of the Campaign for Tobacco-Free Kids, said: "The document indicates that the change in the Department of Justice's position is due to political interference and not a response to the court of appeals decision."
Justice Department spokesman Kevin Madden said the agency could not discuss its internal deliberations. But he released a letter yesterday in which a Justice Department lawyer who worked on the case said he recommended the change because of concerns about the appellate ruling.
Frank Marine, a senior litigation counsel, said the reduction "was not the product of any improper influence but instead represented a considered professional decision." Marine had a limited role in the trial and has not been in court in recent months.
Sharon Eubanks, lead trial attorney for the Justice Department, declined to comment yesterday.
In the May 12 filing, the department was responding to an argument from the tobacco industry that the cessation program would not comply with the February decision. The higher court had ruled that the industry could not be forced to pay $280 billion in allegedly "ill-gotten" profits, because the law requires it to pay only for programs or remedies that prevent future violations.
The government filing, approved and signed by Assistant Attorney General Peter D. Keisler, among others, argued that the appellate court ruling had no bearing on the $130 billion smoking-cessation program. A government witness also testified that the 25-year program was necessary to help an estimated 45 million smokers quit.
"The court should find that the remedy is not only forward-looking and aimed at future violations, but will act directly to prevent and restrain ongoing wrongful conduct of decades-long duration," the filing said.
Keisler was among several senior political officials at Justice, along with Associate Attorney General Robert D. McCallum Jr., who last week insisted outside the courtroom that the same program would not comply with the law.