CLINTON'S HYPOCRITICAL TOBACCO CASE

Less than a year after President Clinton ordered the Justice
Department to sue cigarette makers on behalf of the federal
government, Attorney General Janet Reno has manufactured a case for
him.

This, of course, is the same Reno who said repeatedly that her
department did not have the authority to file suit.

It still doesn't.

But the Clinton administration is not one to worry about the rule of
law when it comes to a politically popular move that coincidentally
could rake in billions more to the federal government.

The Government accuses the companies of violating two little-known
laws that are generally used to recover government medical costs in
cases involving one individual. In this case, the government would use
them to seek a single settlement to reimburse the billions spent to
treat smoking-related illnesses.

The Justice Department also accuses the companies of racketeering
under the Racketeering Influenced and Corrupt Organizations Act,
which, though passed to battle organized crime, is so broad the
government often uses it against companies or individuals when it has
a weak case.

The racketeering charge is particularly troublesome, but it's also
the one that could force a settlement. If the tobacco companies lost
on this count, they could be facing paying treble damages, and there
is evidence they tried to confuse the health-risks issue.

But this charge raises the specter of collusion and perfectly points
out the hypocrisy of the government's case. If the cigarette makers
are racketeers, then the government must be a co-conspirator. Federal
lawmakers have, after all, subsidized tobacco farmers for generations.
The government promoted smoking when it gave cigarettes away to
servicemen and helped the companies open markets for overseas sales.

Most importantly, federal and state governments have
taken in billions of dollars annually from excise taxes on
cigarettes. Says Philip Morris Inc. lawyer Greg Little: ``It is
absurd for the federal government to stand up today and
announce that somehow it was unaware of the health risk
of smoking and has no responsibility for the tobacco
policy of the last 50 years.''

Indeed, for more than a century there have been questions about the
risks of smoking. In 1898, for example, the Tennessee Supreme Court
called smoking products ``wholly noxious and deleterious to health.''

Certainly the government was put on notice in the 1950s as reputable
studies showed a correlation between smoking and lung cancer. No doubt
government officials knew of the potential dangers when the surgeon
general issued the 1964 report warning of the risks of smoking.
Congress responded by requiring a warning label on every pack of cigarettes.

Suspicions aside, cigarette sales were allowed to continue, and the
government, along with the companies and their shareholders, profited
quite nicely. Little said he expects to (and should) seek documents
from every government agency involved to find out just what the
government knew about cigarette smoking and what officials did about
it.

Although the government denies it, the real goal here is to destroy
the tobacco companies. Tobacco may be an evil weed but it's a legal
weed, and one lawmakers have refused to kill. But this lawsuit,
following by months the companies' settlement with the states, would
destroy some of the smaller cigarette makers. This is why some
business groups are wary.

``No business can feel secure in the United States when the enormous
power of the Justice Department can be unleashed against them for the
purpose of raising revenue and scoring political points,'' said Bruce
Josten, executive vice president of the U.S. Chamber of Commerce.
``This is nothing more than taxation through litigation.''

This case and others like it are, as Judge Robert Bork has said,
deforming the law. Today, if the government cannot find the political
support to prohibit something it wants stopped, it sues.

Justice Department officials say they'll need $20 million to go
forward with the case - that's 20 million more tax dollars to pursue a
case seeking reimbursement of tax moneys already spent on the health
care costs of people who assumed the risk of smoking and lost.

And would any ``settlement'' be returned to the taxpayers who paid the
original bill? We don't think so. This case is about political
pandering and a potential unearned windfall.

We ask, as Bork did the other day in The Wall Street
Journal: ``Is there no judge who will call this case what it is
- - an intellectual sham and a misuse of the courts to
accomplish through litigation what cannot be won through
legislation?'' --