Injustice at the Justice Department

Republicans are criticizing John Kerry's choice for vice president because of John Edwards' trial lawyer background and connections. I'm hoping that maybe someone in the Bush administration will take this criticism to heart and do something about the most egregious trial lawyer operation of all time — the Bush administration's Department of Justice.

In a 2,500-page document filed last week in the U.S. District Court for the District of Columbia, the Department of Justice set out its central accusations in its $280 billion lawsuit against the tobacco industry (search). The lawsuit was initially filed by the Clinton-era DOJ, and the Bush administration has continued to press it.

In the section of the document titled "Summary of the Defendant's Scheme to Defraud and Disgorgement," the DOJ alleged that "the Defendants devised an extensive scheme to defraud the public of money that they have executed for nearly 50 years, and which continues to this day. Defendants have carried out this massive scheme to defraud through a variety of means, including, but not limited to, causing the public dissemination of numerous false, deceptive and misleading statements that, among other things: denied that smoking and secondhand smoke cause disease and other adverse health effects; denied that cigarettes are addictive; and denied that tobacco products were marketed to young people."

The Bush DOJ apparently believes that it is a prosecutable offense — under the made-for-mobsters Racketeer Influenced and Corrupt Organizations Act (search) (RICO), no less — for legitimate businesses to defend their products.

Let's take the issue of secondhand smoke, for example, and see who else may have run afoul of the Bush DOJ's dim view of those who have denied that secondhand smoke (search) is a health threat.

First, there's Judge William Osteen of the U.S. District Court for the Middle District of North Carolina who vacated — that is, vaporized — the Environmental Protection Agency's 1993 conclusion that secondhand smoke causes 3,000 lung cancer deaths per year.

Osteen "denied" that the EPA scientifically proved that secondhand smoke caused lung cancer by ruling that "the EPA disregarded information and made findings on selective information; did not disseminate significant epidemiologic information; deviated from its [standard] procedures; failed to disclose important findings and reasoning; and left significant holes in the administrative records. While doing so, the EPA produced limited evidence, then claimed the weight of the Agency's research evidence demonstrated [secondhand smoke] causes cancer."

Then there's the New England Journal of Medicine (search ), one of the world's pre-eminent medical journals, which permitted University of Chicago Hospitals Health Studies Chairman John Bailar in 1998 to expose as junk science research that alleged secondhand smoke was associated with heart disease. We can't forget about New York University professor Mort Lippman — also the chairman of the EPA Science Advisory Board's Indoor Air Quality Committee that reviewed the EPA report on secondhand smoke — who famously noted in 1991 that the health risk from secondhand smoke was so small that it was "probably much less than you took to get [to the EPA building] through Washington traffic."

There are also the tobacco industry's courtroom victories against secondhand smoke claims. Six lawsuits by flight attendants have gone to juries. The tobacco industry has won five of those six. These are but a few of the many who have been critical or skeptical of allegations that secondhand smoke is a scientifically proven health risk.

So let me see if we can make sense of this. A federal judge says the EPA trumped up the evidence that secondhand smoke causes lung cancer. A prestigious medical journal publishes an editorial by a prominent health researcher criticizing a purported link between secondhand smoke and heart disease. The chairman of the EPA's review panel compared the risk of secondhand smoke to cross-town traffic. And juries don't seem inclined to reward secondhand smoke lawsuits.

But it's a RICO offense for the tobacco industry to say and do these same things?

President Bush was critical of the DOJ suit during the 2000 campaign, saying that he was "troubled by the Justice Department's reversal" of a previous position that there was no merit for a federal lawsuit. President Bush added that he hoped "the era of big government is not replaced by the era of big lawsuits." If the president doesn't get a grip on the Department of Justice, businesses could be threatened in the future with similar RICO lawsuits anytime they find themselves disagreeing with the government over scientific issues — blaming the food industry for obesity and the energy industry for global warming (search ) are two ongoing controversies that come to mind.

Until the president does something about the DOJ's rogue $280 billion lawsuit against the tobacco industry, cries about John Edward's trial lawyer connections will ring hollow.

Steven Milloy is the publisher of, an adjunct scholar at the Cato Institute and the author of Junk Science Judo: Self-defense Against Health Scares and Scams (Cato Institute, 2001).