RE: Associate Attorney General Robert McCallum

Associate AG Robert McCallum has become a central figure in the investigation of political interference with the Department of Justice's RICO trial against Big Tobacco. Allegedly, Mr. McCallum, a former tobacco industry lawyer, pressured DOJ trial lawyers to reduce the suggested remedy of $130 billion for smoking cessation programs to $10 billion.

This is what is known of Mr. McCallum's work history:

  1. Prior to joining the Justice Department, Mr. McCallum was a partner at a law firm [Alston & Bird] that represented R.J. Reynolds on trademark and patent issues. Myron Levin, "U.S. Eases Demands on Tobacco Companies," Los Angeles Times, June 8, 2005.

  2. When a law firm represents a particular client, it is though not impossible, very difficult for an attorney with that firm to represent ANYONE who may have a conflict with a current or former client. ABA Model Rules of Professional Conduct Rule 1.7(a)(2) states:

    "...a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if...there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer."

  3. The mechanics of a law firm operate so that partners act as "shareholders", receiving income based on ALL billable hours that a firm collects. Unless Mr. McCallum can prove that he received no income from any hours billed to R.J. Reynolds and collected by his firm, then in fact, Mr. McCallum IS a tobacco industry lawyer.

  4. After being appointed to the Justice Department in 2001, Mr. McCallum signed a friend-of-the-court brief on behalf of the administration urging the Supreme Court not to consider an appeal by the government of Canada to reinstate a cigarette smuggling case that had been dismissed against R.J. Reynolds. Myron Levin, "U.S. Eases Demands on Tobacco Companies," Los Angeles Times, June 8, 2005.

  5. "Sources and government officials close to the case said the trial lawyers wanted to request $130 billion for smoking-cessation programs but were pressured by leaders in the attorney general's office, particularly McCallum, to make the cut. Arguments within the Justice Department continued behind the scenes through yesterday morning, according to the sources, who spoke on the condition of anonymity because of the controversy over the matter." Carol Leonnig, "Tobacco Escapes Huge Penalty," Washington Post, June 8, 2005.

  6. The Department of Justice Ethics Handbook states:

    "If you are an attorney, you will have to disqualify yourself in cases you handled before entering the Government, and from other matters involving your former law firm or clients for a certain period, usually several years." Department of Justice Ethics Handbook, available at: http://www.usdoj.gov/jmd/ethics/text/generaltxte.htm.

  7. The governing federal regulations stipulate that a lawyer in Mr. McCallum's position should recuse himself:

    "Unless the employee is authorized to participate in the matter under paragraph (d) of this section, an employee shall not participate in a particular matter involving specific parties when he or the agency designee has concluded, in accordance with paragraph (a) or (c) of this section, that the financial interest of a member of the employee's household, or the role of a person with whom he has a covered relationship, is likely to raise a question in the mind of a reasonable person about his impartiality. Disqualification is accomplished by not participating in the matter." 5 CFR 2365.502 (e)

    "The exception in this provision -- the reference to paragraph d -- permits an employee to participate in a matter about which he has an apparent conflict if he is authorized by an appropriate agency designee. Mr. McCallum apparently was so authorized. But it is unclear what the basis of that authorization was, nor what it might have been; and a pro forma clearance does not excuse Mr. McCallum from upholding the ethical standards of a government employee," Formal Ethics Complaint Against Associate Attorney General Robert D McCallum, filed by Ralph Nader, June 13, 2005.

  8. The Code of Ethics for federal employees states:

    "Any person in Governmental service should: Put loyalty to the highest moral principles and to country above loyalty to persons, party or Government department." Code of Ethics for Government Service, House Concurrent Resolution 175, 85th Congress, 2d session (1958).

  9. Executive Order 12,731 "Principles of Ethical Conduct for Government Officers and Employees;" states:

    "Employees shall act impartially and not give preferential treatment to any private organization or individual." Executive Order 12,731, Section 101 (h).

So, not only is there good reason to state that Mr. McCallum has been a tobacco industry lawyer, but there is sufficient reason for the Department of Justice to investigate his role in this case, and for an ethics complaint to be filed with the Federal Bar.