News: Senator seeks Bush nominee delay over tobacco case

As I reported here last week, Senator Dick Durbin (D-IL) held up the nomination of Associate Attorney General Robert McCallum to become ambassador to Australia over a claim that he acted improperly in changing the government’s requested smoking cessation remedy in its RICO-based Department of Justice (DOJ) lawsuit from a $130 billion backwards-looking program to a $10 billion forwards-looking one.

Now, that effort to derail McCallum’s nomination, which comes without any documented evidence that he did anything wrong, has been successful.

The Rest of the Story

This is precisely why, as early as July of last year, I spoke out against the unwarranted and undocumented political attack that anti-smoking groups, led by Americans for Nonsmokers’ Rights (ANR), waged against Associate Attorney General McCallum.

I argued that it was simply inappropriate for a public health group to be making a political attack without sufficient evidence of wrongdoing. In this case, there was actually no evidence that McCallum did anything wrong.

This, however, didn’t stop ANR from falsely claiming to the public that McCallum was a “former tobacco industry lawyer” and implying that it was therefore an ethical violation for him to be involved in a lawsuit against the tobacco companies who he formerly represented.

In its political attack, ANR went so far as publicly stating that there was “a cancer” on the Justice Department.

In addition, ANR stated that there was sufficient evidence to warrant “an ethics complaint to be filed with the Federal Bar.”

All this despite the fact that ANR itself admits that federal policy allows an “employee to participate in a matter about which he has an apparent conflict if he is authorized by an appropriate agency designee” and that “Mr. McCallum apparently was so authorized.”

The truth is that McCallum never represented any tobacco company and therefore he is not a former tobacco industry lawyer as ANR claims.

The truth is that McCallum did appropriately request clearance from the DOJ Ethics Office to participate in the DOJ tobacco case because he had been a partner at a law firm that represented R.J. Reynolds. Clearance was granted.

The truth is that the conflict of interest is one which would provide R.J. Reynolds with a potential grievance, not the U.S. government.

The truth is that the request to reduce the proposed smoking cessation remedy in the DOJ case from a $130 billion backwards-looking program to a $10 billion forwards-looking one was legally necessary in order to comply with the D.C. Court of Appeals ruling that precluded backwards-looking remedies. Had McCallum not intervened in the lawsuit to more narrowly tailor this remedy, it would have been a complete embarrassment to the Department of Justice (as such, it is only a partial embarrassment, because at least it looks like DOJ is aware of the appellate court decision, though not being particularly compliant with it).

Back on July 21, I noted that ANR’s political campaign to denigrate Robert McCallum was working. The public seemed to be buying the “fact,” false as it was, that McCallum had previously represented R.J. Reynolds.

I wrote on July 21: “I think we need to wait until the investigation has been completed to cast judgment on him [McCallum] and his role in the case. But what I do think is indisputable is that he deserves to be judged based on the facts. And in this case, the fact is that he never represented R.J. Reynolds in litigation. But in my opinion, the majority of the public who is familiar with this story believes that he has. I do not think that is just. And I do not, therefore, find it acceptable that anti-smoking groups may have contributed to the public’s misperception in a way that may inappropriately denigrate the reputation and character of an individual.”

Apparently, the denigration of McCallum’s character was successful, because public opinion was judged to be sufficiently negative against McCallum to support a single Senator successfully blocking this nomination.

Don’t get me wrong. I’m not suggesting that ANR was responsible for blocking the nomination. That was clearly Durbin’s doing. I’m only pointing out the kind of damage that can be done when anti-smoking groups make undocumented and unwarranted political attacks. And I’m pointing out the damage that was apparently done by ANR’s unwarranted and premature attack.

The rest of the story is that there simply is no actual evidence that Associate Attorney General Robert McCallum did anything wrong by seeking clearance to be involved in his Department’s tobacco case, being cleared by the Ethics Office, and participating in the case. Nor is there any evidence that he did anything wrong by demanding that a more narrowly tailored and forwards-looking smoking cessation remedy be substituted for one which was clearly not consistent with statute as interpreted by the governing court in the case.

My impression is that ANR and other anti-smoking groups are so anxious to jump into the attack of anyone who can in any way be construed as opposing our side that they jumped the gun and attacked without the evidence.

Unfortunately, this is not an isolated occurrence, but seems to be becoming a common theme in the anti-smoking movement: attack first, ask questions later.

This is not the way to practice public health.
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