Tobacco Suit Represents a Quick Reversal

When Atty. Gen. Janet Reno announced the filing of a huge civil lawsuit against the tobacco industry earlier this week, it represented a sharp turnaround in the Justice Department’s position of the last five years.

Just two years ago, when Reno was asked whether the federal government would join those who were suing the tobacco industry, she gave lawmakers an ambiguous answer that left the impression department lawyers were dubious at best about whether the government would have a credible case. Since early last year, however, much has happened to make Reno change her mind.

For instance, new evidence became available to the department on the extent of the industry’s efforts to conceal information about tobacco’s ill effects.

But equally important was a behind-the-scenes lobbying campaign by anti-smoking groups, the trial lawyers who had taken on the tobacco industry on behalf of the states and an array of legal intellectuals who believed the government could make a case.

Backing up the advocates were domestic policy advisors at the White House who performed a delicate dance. After a bill to regulate tobacco failed in Congress in June 1998, the advisors wanted to avoid pushing Justice Department attorneys too hard, fearing the tactic might backfire. But they also wanted to keep the pressure on the department to consider every possible approach to bringing a lawsuit.

“Once the tobacco bill was killed in the Senate . . . , a number of parties inside and outside the administration, who had been interested in a national resolution, urged the Justice Department to take another look,” said Bruce Reed, the chief domestic policy advisor to President Clinton. “They got lots of unsolicited advice.”

The White House also acted as a conduit for a stream of legal memorandums by anti-tobacco lawyers, ensuring that their thoughts on how to go after the industry reached the department.

The campaign started in earnest in July 1998, just days after the collapse of the massive legislation. Four lawyers marched into Reed’s office for what turned out to be the first of a series of meetings.

The attorneys included John Coale, who was involved in class-action suits against the industry; Hugh Rodham, the president’s brother-in-law who was involved in some of the same suits; and two Mississippi lawyers, state Atty. Gen. Mike Moore and his old friend Richard Scruggs, who successfully filed the first state lawsuit against the cigarette manufacturers.

“Basically we brainstormed and traded information--they were very interested,” said Coale, who added that presidential assistant Bruce Lindsey as well as Reed were usually at the meetings.

“The people at the White House wanted to [bring a lawsuit] all along--basically Justice didn’t want to do it,” Coale said.

Scruggs and several colleagues also made a pilgrimage down Pennsylvania Avenue to the Justice Department to share their ideas with the chief of the Civil Division, Frank W. Hunger, and his lawyers.

Reno, according to lawyers involved in the tobacco issue, always had been supportive of a lawsuit in the abstract but relied on her deputies to tell her whether it would be viable. But first Hunger, whose Civil Division lawyers would have to bring the action to trial, had to be convinced.

A courtly, soft-spoken man, Hunger, who is Vice President Al Gore’s brother-in-law, had at first seemed a natural ally of Scruggs and Moore. Like them, Hunger came from Mississippi and had no love for cigarette manufacturers. His wife, Gore’s sister, had died of lung cancer.

However, on this lawsuit he was leery. A cautious lawyer, Hunger deferred to the career lawyers who worked for him. They had advised him that a lawsuit against the industry based on existing law was unprecedented.

“Once he had accepted their advice it was hard for him to reverse himself,” said a lawyer who knows Hunger well.

At the meetings with Scruggs and his partners, the Justice Department attorneys seemed deeply skeptical of their ideas. But later in the year, Scruggs gave Justice attorneys a draft complaint.

Proponents of the federal lawsuit also brought to bear the work of members of the intellectual legal community who wrote detailed memorandum. In particular, Scruggs hired Harvard law professor Laurence H. Tribe and Notre Dame University law professor G. Robert Blakey, who earlier had assisted some states against the industry.

David Vladeck, the head of Public Citizen Litigation Group, also believed there was a case under the Medical Care Recovery Act. He wrote an article in a technical journal that was sent to Justice Department lawyers laying out its argument.

On Jan. 19, Blakey, who wrote the Racketeer Influenced, Corrupt Organizations law as a congressional staff member, and Tribe met with Justice Department officials to make their pitch.

“I got the most incredibly hostile reception,” Blakey said. “ ‘Can’t do it. Bad idea.’ ”

A day later Blakey was stunned when Clinton, in his State of the Union address, announced that the Justice Department had decided to prepare a litigation plan.

The tobacco industry reacted immediately, sending out memos, writing op-ed articles and meeting with reporters and editorial boards to disparage the proposed lawsuit. And the cigarette manufacturers’ defenders on the Hill successfully blocked the administration’s request for additional money to pay for the lawsuit.

But once the decision was made to move forward, it was only a question of time.

Hunger, the department’s most vocal opponent of a lawsuit, now has returned to private practice. Taking his place is David Ogden, who had been Reno’s point person on tobacco legislation and was open to more creative--and potentially more risky--legal approaches.

Newly on board was a pivotal player: William B. Schultz, a former deputy commissioner at the Food and Drug Administration, who had a long history of fighting cigarette manufacturers at the FDA and as an aide to Rep. Henry A. Waxman (D-Los Angeles), a staunch tobacco foe.

Now the department seemed to have a new attitude. Instead of reluctantly listening to outside plaintiffs’ lawyers and their professorial allies, the new team invited key outside lawyers to aid its effort. Private lawyers Michael Ciresi and Roberta Walburn, who had led the Minnesota case that yielded a $6.6-billion settlement, were retained as short-term consultants.

Within a matter of months, Reno announced the department’s lawsuit.

Rubin reported from Washington and Weinstein from Los Angeles.