SMOKIN'!!!

FEDERAL JUDGE ALLOWS CREW TO TAKE DEPOSITION OF TOP DOJ OFFICIAL

Court Finds DOJ Failed to Comply with FOIA Obligations

Washington, DC – Today, U.S. District Court Judge Emmet Sullivan took the rare step of ordering discovery in the case of Citizens for Responsibility and Ethics in Washington (CREW) v. Department of Justice (DOJ) regarding the government’s last minute change of position in its tobacco lawsuit.

Last June, CREW submitted a Freedom of Information Act (FOIA) request to DOJ asking for records relating to the proposed penalty in United States v. Philip Morris, Inc. As a penalty for the tobacco industry’s violations of racketeering laws, DOJ had initially sought $130 billion, at a rate of $5.2 billion per year over 24 years, to fund a smoking cessation program. Suddenly and without explanation, in June 2005 DOJ drastically dropped the amount to only $10 billion, at a rate of $2 billion per year for five years.

To learn why DOJ changed its position and to discover if there was any wrongdoing involved, CREW filed several FOIA requests with DOJ. Among the information requested, CREW asked for all contacts between Associate Attorney General Robert McCallum and his former law firm Alston & Byrd, a firm that represented tobacco companies. This past spring, President George Bush nominated McCallum to be the United States' ambassador to Australia. McCallum and President Bush were classmates at Yale University.

Given public interest in the case, CREW asked DOJ to process its requests on an expedited basis.

Although DOJ initially agreed to CREW’s request for expedition, nearly a year later, CREW has yet to receive a single record. As a result, CREW sued, arguing that DOJ’s extraordinary delay in processing the requests constituted bad faith.

In today’s order, Judge Sullivan stated that he was “not persuaded” that DOJ had, in fact, handled CREW’s request in an expedited manner and that “sufficient question[s]” had been raised as to the propriety of DOJ’s conduct in the manner to warrant awarding discovery to CREW. Judge Sullivan ordered CREW to depose not only McCallum, but also the Director of the Office of Information and Privacy, Daniel Metcalfe, Steve Brody, a member of the tobacco team, and James Kovakas, the attorney in charge of the Civil Division’s FOIA processing.

Melanie Sloan, CREW’s executive director, stated, “hopefully, with these depositions, the American people will begin to learn the truth about why DOJ so drastically reduced the penalty in the tobacco case. It is also gratifying to know that the federal courts will not allow the Administration to avoid complying with its legal obligations under the FOIA.”

A copy of the decision and CREW’s FOIA are available on CREW’s website, www.citizensforethics.org

Citizens for Responsibility and Ethics in Washington (CREW) is a non-profitlegal watchdog group dedicated to holding public officials accountable for their actions.

For more information, please visit www.citizensforethics.org or contact Naomi Seligman at 202.408.5565 or press@citizensforethics.org.