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<DIV><STRONG><FONT size=5>Prosecutor Says Bush Appointees Interfered With
Tobacco Case<BR></FONT></STRONG>
<P><FONT size=-1>By Carol D. Leonnig<BR>Washington Post Staff
Writer<BR>Thursday, March 22, 2007; A01<BR></FONT></P>
<P></P>
<P>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.</P>
<P>Sharon Y. Eubanks said 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.</P>
<P>She said a supervisor demanded that she and her trial team drop
recommendations that tobacco executives be removed from their corporate
positions as a possible penalty. He and two others instructed her to tell key
witnesses to change their testimony. And they ordered Eubanks to read verbatim a
closing argument they had rewritten for her, she said.</P>
<P>"The political people were pushing the buttons and ordering us to say what we
said," Eubanks said. "And because of that, we failed to zealously represent the
interests of the American public."</P>
<P>Eubanks, who served for 22 years as a lawyer at Justice, said three political
appointees were responsible for the last-minute shifts in the government's
tobacco case in June 2005: then-Associate Attorney General Robert D. McCallum,
then-Assistant Attorney General Peter Keisler and Keisler's deputy at the time,
Dan Meron.</P>
<P>News reports on the strategy changes at the time caused an uproar in Congress
and sparked an inquiry by the Justice Department. Government witnesses said they
had been asked to change testimony, and one expert withdrew from the case.
Government lawyers also announced that they were scaling back a proposed penalty
against the industry from $130 billion to $10 billion.</P>
<P>High-ranking Justice Department officials said there was no political
meddling in the case, and the department's Office of Professional Responsibility
(OPR) concurred after an investigation.</P>
<P>Yesterday was the first time that any of the government lawyers on the case
spoke at length publicly about what they considered high-level interference by
Justice officials.</P>
<P>Eubanks, who retired from Justice in December 2005, said she is coming
forward now because she is concerned about what she called the "overwhelming
politicization" of the department demonstrated by the controversy over the
firing of eight U.S. attorneys. Lawyers from Justice's civil rights division
have made similar claims about being overruled by supervisors in the past.</P>
<P>Eubanks said Congress should not limit its investigation to the dismissal of
the U.S. attorneys.</P>
<P>"Political interference is happening at Justice across the department," she
said. "When decisions are made now in the Bush attorney general's office,
politics is the primary consideration. . . . The rule of law goes out the
window."</P>
<P>McCallum, who is now the U.S. ambassador to Australia, said in an interview
yesterday that congressional claims of political interference were rejected by
the OPR investigation, for which Eubanks was questioned. He said that there was
a legitimate disagreement between Eubanks and some career lawyers in the
racketeering division about key strategy and that his final decision to reduce
the proposed penalty to pay for smoking-cessation programs was vindicated by the
judge's ruling that she could not order such a penalty.</P>
<P>"Her claims are totally false in terms of [us] trying to weaken the case,"
McCallum said. "Her claims were looked into by the Office of Professional
Responsibility and were found to be groundless."</P>
<P>In June 2006, the OPR cleared McCallum, concluding that his "actions in
seeking and directing changes in the remedies sought were not influenced by any
political considerations, but rather were based on good faith efforts to obtain
remedies from the district court that would be sustainable on appeal."</P>
<P>Keisler and Meron did not return telephone calls seeking comment.</P>
<P>U.S. District Judge Gladys Kessler ruled last August that tobacco companies
violated civil racketeering laws by conspiring for decades to deceive the public
about the dangers of their product. She ordered the companies to make major
changes in the way cigarettes are marketed. But she said she could not order the
monetary penalty proposed by the government.</P>
<P>The Clinton Justice Department brought the unprecedented civil suit against
the country's five largest tobacco companies in 1999. President Bush disparaged
the tobacco case while campaigning in 2000. After Bush took office, some
officials expressed initial doubts about the government's ability to fund the
prosecution, Justice's largest.</P>
<P>Eubanks said McCallum, Keisler and Meron largely ignored the case until it
became clear that the government might win. She recalled that "things began to
get really tense" after McCallum read news reports in April 2005 that one
government expert, professor Max H. Bazerman of Harvard Business School, would
argue that tobacco officials who engaged in fraud could be removed from their
corporate posts. Eubanks said she received an angry call from McCallum on the
day the news broke.</P>
<P>"How could you put that in there?" she recalled him saying. "We're not going
to be pursuing that."</P>
<P>Afterward, McCallum, Keisler and Meron told Eubanks to approach other
witnesses about softening their testimony, Eubanks said.</P>
<P>Matthew Myers of the Campaign for Tobacco-Free Kids was one of the witnesses
whom Eubanks asked to change his testimony. Yesterday, he said he found her
account to be "the only reasonable explanation" for what transpired.</P>
<P>Two weeks before closing arguments in June, McCallum called for a meeting
with Eubanks and her deputy, Stephen Brody, to discuss what McCallum described
as "getting the number down" for the $130 billion penalty to create
smoking-cessation programs. Brody declined to comment yesterday on the legal
team's deliberations, saying that they were private.</P>
<P>During several tense late-night meetings, McCallum repeatedly refused to
suggest a figure, Eubanks said, or give clear reasons for the reduction. Brody
refused to lower the amount. Finally, on the morning the government was to
propose the penalty in court, she said, McCallum ordered it cut to $10
billion.</P>
<P>The most stressful moment, Eubanks said, came when the three appointees
ordered her to read word for word a closing argument they had rewritten. The
statement explained the validity of seeking a $10 billion penalty.</P>
<P>"I couldn't even look at the judge," she said.</P>
<P><I>Staff writer Dan Eggen contributed to this
report.</I></P></DIV></BODY></HTML>