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.
No wonder the trial judge described the ruling as a ?body blow? to the government?s case.
Most legal experts agree that although the government plans to appeal en banc, meaning before the full appeals court, odds of the disgorgement option being reinstated are slim. Odds are slimmer still that the Supreme Court would do so.
Even if the government wins the civil RICO case, it would be a hallow victory. It is almost certain that the defendants will have to pay nothing regardless of the outcome of the actual trial (which is ongoing while DOJ files its appeal on RICO), and the non-monetary relief sought by the government is mostly stuff?like disclosing health risks and funding public awareness campaigns?that the top tobacco companies are already doing as a result of the $246 billion settlement with 46 states.
What has DOJ sacrificed? Plenty. When the case started over five years ago, DOJ dedicated 16 highly-skilled attorneys to the case. Today, that number has ballooned to 35 full-time lawyers, out of a total civil attorney staff of over 800. In a day and age when DOJ attorneys could be used to target the financing of terrorists and their front groups, the Bush administration is wasting 35 of them in a Quixotic campaign to flagellate Big Tobacco.
Of course it?s hard to have sympathy for the makers of cancer sticks, but almost a decade of toiling by the government?and likely well over $200 million when it?s all over?will yield next to nothing. All the government is playing for at this point is something it can claim as a victory, which at this point would mean modest changes in cigarette marketing.
To which taxpayers should ask: How many more millions will be spent to salvage the government?s pride?
Joel Mowbray, who got his start with Townhall.com, is an award-winning investigative journalist, nationally-syndicated columnist and author of Dangerous Diplomacy: How the State Department Threatens America's Security.
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