Backing off tobacco

As a senator, John Ashcroft was utterly opposed to the federal lawsuit against the tobacco industry. As attorney general, he is entitled to that same opinion. As the boss at the Justice Department, he should know better than to trash his employees.

If Mr. Ashcroft wants to drop the $100 billion suit, his recent statement that he has a “lack of confidence” in the Justice Department attorneys litigating the case is the wrong way to go about it. Such a statement sheds no light upon the merits of the case or the complex underlying issues. It is merely a slap at unnamed subordinates for unspecified reasons.

To the general public, it is a statement that plays upon a widespread disapproval of lawyers and government bureaucrats; in this case, it impugns a broad category of anonymous persons who have chosen to be both. Within the legal profession, it is an unwarranted attack upon the professional reputations of real lawyers with real names. Combined with the several instances in which EPA Administrator Christine Todd Whitman has been publicly rebuked for reiterating positions the president she serves stated but no longer holds, this reveals a disturbing tendency of the Bush administration to hang its own people out to dry.

As for the tobacco lawsuit, the administration has the means to end it by simply not funding it. The suit filed in 1999 alleges a 45-year pattern of misleading the public about the health effects of tobacco and of covering up youth-oriented marketing practices, and seeks to recover billions in public health care costs. The case is due to go to trial in 2003 and Justice Department lawyers say they now need a significant increase in funding, roughly $57 million, to review the hundreds of thousands of tobacco industry documents and scientific studies. The president’s 2002 budget proposal calls for $1.8 million to flat-fund staffing costs, but no additional money for the pre-trial workload. If the administration has no intention of pursuing this case, it has no business wasting even such an inconsequential amount as $1.8 million on pretense.

Some crucial elements of the case, such as the health cost claims, have been dismissed and the fight goes on to have them reinstated. On the other side of the ledger, Justice lawyers last year pulled off the stunning coup of getting court approval to pursue claims of intentional deception under RICO, the Racketeer Influenced and Corrupt Organizations Act.

Big Tobacco is aghast at the thought of having its industry executives prosecuted under the same law that puts organized crime kingpins in prison and has made no secret of its intent to get even with those responsible for the indignity. Through its extremely generous campaign contributions, it has long had a Congress that will not regulate this particular addictive drug as a drug; now it has an administration content to let this case wither. It may be that Mr. Ashcroft’s real gripe with his Justice Department lawyers is that they have done their jobs too well.