Executive Session

EXECUTIVE SESSION

TOBACCO SETTLEMENT

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, I rise to speak on an issue that appeared in the newspapers last week. Last week a client was sold out by his lawyer. It happens across America on a regular basis. It is unfortunate. It is unethical, unprofessional, and basically wrong, but it happens.

The reason why this caught my attention, and the attention of many, was that the lawyer in this case was the Attorney General of the United States; the client, the American people. At issue was a lawsuit brought against the tobacco industry by the Department of Justice. It was a lawsuit started under President Clinton and carried on under President Bush. The case was made that the tobacco industry in America over 50 years deceived and deliberately misinformed the people about the dangers of the product they were selling.

Last week our lawyers, the Attorney General of the United States and the Department of Justice, the people who are supposed to be working endlessly every day to protect the best interests of America, basically walked away from their own case. The Department of Justice chose to dismiss credible testimony from its own witnesses, people it had brought into this lawsuit.

A few months ago, Michael Fiore, who spent his entire career in public health and the study of tobacco use and cessation, recommended a comprehensive smoking cessation program across America, funded at $5.2 billion a year for at least 25 years. Mr. Fiore's testimony was that we would take the money and profits the tobacco companies had made by deceiving the American people about the danger of tobacco and cigarettes and use it so that Americans currently smoking, addicted, or who might be tempted to smoke would have a chance to be spared from the disease and death which follows from that addiction.

Last week, the Justice Department's lawyer, a gentleman working for Attorney General Gonzales by the name of Stephen Brody, shocked the court and the American people by announcing that the Justice Department would only seek a fraction of the money which his own witness had said should be recovered by the people. This Assistant Attorney General, Stephen Brody, walked into a courtroom and said that instead of the $130 billion the tobacco companies would owe to the people to help them avoid tobacco addictions, he would only seek $10 billion.

Before I was elected to Congress, I used to be a trial lawyer. I used to go through this routine. But it certainly didn't involve billions or even millions of dollars. They were much smaller cases. If I was being sued and someone had said, Listen, we need $100,000 and that is it, come up with $100,000 or we are going to trial, I would have to make an assessment. Is this case one that I am likely to win or lose, if I am being sued, $110,000, $100,000 on the line? But if a few days before the trial they walked in and said, No, we are wrong. It isn't $100,000, it is only $10,000, I would think to myself, They don't have much of a lawsuit, on one day to ask for $100,000 and the next to ask for $10,000.

In this case, our Attorney General, through Mr. Brody, was asking the court for $130 billion. And then last week, to the surprise of everybody, he walked in and said, No, only $10 billion.

Does this administration really believe the people of the United States won't notice the Government is willing to leave $120 billion on the table and walk away from it?

Well, they did notice. Newspapers across the country have run editorials and articles criticizing the Department of Justice for what appears to be bad representation of the American people, the fact that the American people were cheated by their lawyer, newspapers are from all over the country: Houston, TX; Lowell, MS; Lakeland, OH; Harrisburg, PA; Tacoma, WA; Albuquerque; Denver; Racine, WI; Los Angeles; New York; and the Washington Post. The country has noticed that a lawyer sold out his client because it is a big sellout.

The Albany Times Union wrote:

So, why the sudden about face? Yes, it's routine for attorneys to suddenly change a client's demand if it appears that the merits of the case are weak, or that a judge or jury appears likely to rule against them. But most legal experts had widely believed the government would win this case because it was based on the same evidence used successfully by state attorneys general to win $246 billion. That evidence ..... showed they knew cigarettes were addictive even as they conducted campaigns to get young people to smoke.

The Denver Post editorial was headlined, ``What Are the Feds Smoking?'' Good question.

The Lowell Sun says:

The dramatic change [in government strategy] was both shocking and outrageous. Allowing political pressure to interfere in any trial--particularly one of such importance--is beyond unacceptable, it's unconscionable.

Finally, the Houston Chronicle, from the President's own home State of Texas, quotes a civil attorney who says he would be ``thrilled'' if he were representing a tobacco company in this case. The lawyer said:

I've never seen anything like this happen unless there's political pressure.

It is obvious something happened in this case, and it wasn't about law. It was clearly about politics.

The Chronicle concludes:

If this illustrates the compassion [Attorney General] Alberto Gonzales promised to bring to the job, then he is feeling sorry for the wrong people.

I agree. This administration has never demonstrated much enthusiasm for this tobacco case, which it inherited from the Clinton administration.

To its credit, though, the Department has avoided public discussion of settlement, prosecuted a strong case, brought in the witnesses, until last week. I have joined several of my colleagues in the House and Senate asking the Attorney General to initiate an investigation surrounding this decision last week to basically sell out the American people when it comes to this tobacco lawsuit. I call on the Attorney General, through his inspector general or directly, to answer the question: Why did you walk away from the American people in this tobacco lawsuit?

This Government has signaled to the tobacco industry that the settlement will be cheap. While the American people deserve more, the people's lawyers appear to be winking at the other side. It is hard to imagine a settlement after last week that would be a good deal for the American people. I encourage the Department to hold off any settlement discussions until we replace the DOJ officials who sold us out last week. Those who put pressure on Stephen Brody have to go. If The Department of Justice can walk into that courtroom and sell out the American people, the American people need a new lawyer.

The purpose of this lawsuit was to hold accountable the promoters of tobacco use for what has become the leading cause of preventable death in America. An early settlement in this case will miss that point entirely. The Department of Justice set out a detailed case establishing the tobacco industry's role in misleading America. This is a rare opportunity to hold tobacco companies accountable for the preventable deaths tobacco causes and to reach those who are addicted to tobacco today.

The Department of Justice chose to walk away, leaving $120 billion and 43 million American lives behind.

Mr. President, I yield the floor, and I suggest the absence of a quorum.

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