DOJ Clears McCallum of Misconduct Charges

June 8, 2006 11:15 am by Gene Borio

The DOJ has cleared Assoc. Attorney General Robert McCallum of “improper influence” in the lowering of remedies targets in the DOJ case.

“[W]e found that your 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. Accordingly, we concluded that you did not engage in professional misconduct or exercise poor judgment,” a June 1 letter to McCallum from attorney H. Marshall Jarrett of the DOJ’s Office of Professional Responsibility states. The report has been forwarded to the Deputy Attorney General.

The investigation also found that McCallum took proper steps before participating in the case to avoid conflict of interest charges due to his employment with an RJR law firm.

Text of Letter to McCallum from DOJ Office of Professional Responsibility, June 1, 2006 follows:

**———————————————————

U.S. Department of Justice

Office of Professional Responsibility

950 Pennsylvania Avenue, NW. Suite 3266 Washington, D. C. 20530

JUN 1 2006

MEMORANDUM

TO: Robert D. McCallum, Jr. Associate Attorney General

FROM: H. Marshall Jarrett Counsel

SUBJECT: Report of Investigation Regarding Misconduct Allegations Arising in Connection with United States v. Philip Morris USA Inc., Civ. A. No. 99-2496-GK (D.D.C.)

We have completed our investigation into allegations that improper influence by political appointees in the Department led to a reversal of the position on remedies advocated by the career attorneys working on United States v. Philip Morris USA Inc., and caused the career attorneys to request three witnesses in the case to change their testimony pertaining to the remedies sought in the litigation. Based on the results of our investigation, we found that your 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. Accordingly, we concluded that you did not engage in professional misconduct or exercise poor judgment.

We have also completed our investigation into allegations that you should have been disqualified from participating in the Philip Morris litigation because, prior to joining the Department, you served as a partner in a law firm that represented the R.J. Reynolds Tobacco Company. Based on the results of our investigation, we found that you did not have a conflict of interest in participating in the Philip Morris case and that you took appropriate steps under Department ethic rules to address the issue. Accordingly, we concluded that you did not engage in professional misconduct or exercise poor judgment.

We have forwarded a report of our investigation to the Deputy Attorney General. If you have any questions about the results of our investigation, please contact the Deputy Attorney General. Thank you for your cooperation with our investigation.

5 Responses to “DOJ Clears McCallum of Misconduct Charges”

  1. tobacco observer Says:

    For some reason the DOJ trial team seemed to think that asking for exhorbitant and illegal remedies all the way through the trial was going to pressure tobacco into settling. That approach may have made sense before the DCCA said the gov’t couldn’t have remedies like the ones it was asking for, but certainly not afterwards!

    As he said at the time, and has been pointed out here before, all McCallum did was FINALLY try to align the DOJ’s remedy requests with the clear directives of the DCCA appeals court, something that the DOJ trial team itself appeared unprepared to do.

    So much for allegations of political influence, though I suppose no amount of investigation or clear-minded explanations or investigations will ever convince anyone who wants to believe in partisan conspiracy theories.

    Ironically, even with all the hype over the decision to finally reduce the remedy requests, that decision may have come too late. The DOJ didn’t submit its formal remedy requests until the very last second of the trial. That could pose a serious problem for the DOJ on appeal since there is Supreme Court precedent that remedy requests have to be submitted in a timely manner (its actually USA (DOJ) vs Microsoft, if I remember right).

    Finally, speaking of remedies, its been nearly a year since Tobacco asked Judge Kessler to look at the DCCA decision on remedies and give summary judgment on the availability of the smoking cessation remedy. It was a concise motion of only a few pages. Where has she been on this?

  2. Gene Borio Says:

    >>Finally, speaking of remedies, its been nearly a year since Tobacco asked Judge Kessler to look at the DCCA decision on remedies and give summary judgment on the availability of the smoking cessation remedy. It was a concise motion of only a few pages. Where has she been on this?

    Writing the verdict?

    As to the cessation remedy, I’d love to hear what Sharon Eubanks thinks of all this, as I believe she was probably the toughest fighter against McCallum, et. al.

    I’ll bet, when it’s all over, she could turn out a pretty interesting book–

  3. Krueger Says:

    Sharon Eubanks:

    “Robert McCallum definitely was not supportive of the trial team’s efforts … He took aggressive actions to destroy our efforts when it became clear that we had firm legal bases for seeking much more meaningful remedies from the court.

    “I should be clear about this: Robert McCallum directed the position taken on remedies sought by the United States. It did not matter to him what the evidence actually demonstrated and supported, rather, it was only the bottom line that mattered to him — the lower the better”

    A second former Justice Department lawyer, Brett Spiegel, backed Ms Eubank’s version of events.

    http://www.theage.com.au/news/world/envoy-under-tobacco-cloud/2006/06/10/1149815362144.html

  4. Krueger Says:

    Sharon Eubanks:

    “Robert McCallum definitely was not supportive of the trial team’s efforts … He took aggressive actions to destroy our efforts when it became clear that we had firm legal bases for seeking much more meaningful remedies from the court.

    “I should be clear about this: Robert McCallum directed the position taken on remedies sought by the United States. It did not matter to him what the evidence actually demonstrated and supported, rather, it was only the bottom line that mattered to him — the lower the better”

    A second former Justice Department lawyer, Brett Spiegel, backed Ms Eubank’s version of events.

    http://www.theage.com.au/news/world/envoy-under-tobacco-cloud/2006/06/10/1149815362144.html

  5. Hippocrates Says:

    Perhaps the most important question is what forward remedies- such as court monitors, will be imposed, and what they will be tasked to do. Large Financial punishments have seemingly been curtailed by the DC Court of Appeals. McCallum specifically tried to throw out monitors, and per Bazerman and Myers testimony, he asked them to dramatically downplay or throw out the need for monitors in their testimony. Monitors were not ruled out by the Court of Appeals and the fact McCallum tried to do this is very telling- it reveals whose side he was on- Big Tobacco. The Office of Prof. Resposibility absolved him of wrongdoing but I cannot fathom under what pretense he would ask Bazerman to drop his testimony unless McCallum was doing Tobacco’s bidding. This requires further review by the Senate and others. The DOJ is incapable of investigating this, for obvious reasons, namely Gonzalez and Bush.
    Finally, Court Monitors could provide a partial measure of oversight as Tom Delay, Abramoff, and RJR thwarted FDA Regulation of tobacco, most importantly for aflatoxin levels on tobacco, as FDA regulates Aflatoxin on all other crops. Aflatoxin is the most carcinogenic substance known and is immunosuppressive and is enhancing the worldwide spread of AIDS. Google “tobacco aflatoxin” to see how many documented orphans this toxin has caused. We just hope the orphans will be heard. Perhaps McCallum silenced them as well. That would be a major criminal obstruction of justice leading to God only knows where…..

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