When the defense started presenting its case recently in the civil RICO case against Big Tobacco, it was the federal government that was on the defensive.  The Department of Justice has taken so long to lose so much that it has but one goal left: saving face.

And with the government headed for near-certain defeat?despite spending at least $135 million before the actual trial started last September?it is the Bush DOJ that stands to suffer from a snowball that started rolling downhill early in the Clinton Administration.

The roots of the current litigation stretch back almost a decade, to a criminal investigation that a spokesman at Phillip Morris parent Altria estimates launched in 1995.  No charges were ever filed. And it appears that the criminal probe was shuttered almost on the same day the current civil lawsuit was filed.  The closing line of the DOJ press release announcing the lawsuit was: ?There are no pending Criminal Division investigations of the tobacco industry??a clumsy and cryptic way of saying the criminal probe had ended as recently as the day before.

On the heels of the failed criminal investigation, the federal government sought hundreds of billions of dollars for reimbursement of Medicare costs.  DOJ?s original complaint, filed in September 1999, alleged that the federal government spends more than $20 billion per year treating people with smoking-related illnesses. 

Just over a year later, the judge tossed out the Medicare reimbursement portion of DOJ?s lawsuit, stripping the government of the cornerstone of its case.  All that remained was a civil racketeering charge, which relied on a law Congress created in 1971 to fight the mafia.

It was September of an election year at this point, no time to drop a lawsuit against the most vilified industry in America.  So Clinton?s DOJ redoubled its efforts, using a forward-looking statute?civil RICO was only intended as an additional tool to help thwart future bad behavior?to win damages for past actions.  You don?t need to be a lawyer to know that sounds fishy.

To get to its damages figure, DOJ employed creative accounting to accompany its creative use of the law.  Since RICO does not allow the government to collect damages, it argued instead that to stop future wrongdoing by Big Tobacco, the court should disgorge all ill-gotten gains over the past fifty years. 

Using some combination of alchemy and blind guessing, DOJ?s experts calculated $75 billion in total fraudulently-earned profits.  But then it tacked on an extra $205 billion as interest that could have been earned on that money.  The resulting dollar figure that DOJ was then seeking was $280 billion, remarkably close to what it probably would have asked for had the Medicare reimbursement part of the case not been tossed so early.

Although the trial court judge, a Clinton appointee, approved the novel civil RICO approach last May, a 3-judge panel on the D.C. Court of Appeals last month said that the government could not seek any monetary damages.  Thus, no more $280 billion.  Not even $280, for that matter.  Continued...