Qui Tam

JOHN BROWNLEE FOR ATTORNEY GENERAL OF VIRGINIA IN 2009

By Zachary A. Kitts

With a little under two weeks remaining in the Republican primary for Attorney General of Virginia, Republican convention-goers are faced with a choice between John Brownlee, Ken Cuccinelli, and Dave Foster.  This blog has covered the Virginia AG's race in some detail, despite the fact that this is a legal and not a political blog.  Today I want to explain the very specific reasons why I have waded into the waters of the Virginia AG's race, and will continue to do so up through the primary and into the general election in November.

The 2009 Virginia Attorney Generals' race is important to this blog because the Virginia Fraud Against Taxpayers Act can become a real weapon in the Commonwealth's fight against fraud, waste and abuse, and because the policing of our state's budget and reducing fraud, waste, and abuse is too important to be left up to chance.     

Of course, every single person in the race for Attorney General says that they are against fraud, waste, and abuse of government money, and I am sure they really are.  The reason there is so much fraud, waste, and abuse in the Commonwealth's budget--and the reason we are not doing a better job of policing it--is not that the politicians are profiting, or because we lack the political will to do something about it, but rather because much of our political leadership simply does not know what to do, and they lack the vision and dedication to figure it out.   

That is why I am supporting John Brownlee for Attorney General.     

I litigate cases for a living, and that gives me a chance to see first-hand the wide range of skills and abilities present among my fellow members of the bar.  All lawyers may be created equal in the sense that anyone with a law license can practice any kind of law in a state where they are licensed, but believe me, all lawyers are not equal in their experience, skills, and aptitudes.    

I have devised my own colloquial label for the lawyers I respect and admire.  I simply call them "real lawyers."  Virginians need to pick a real lawyer to be our next Attorney General, but the requirements don't stop there.  If the only requirement for AG was that we pick a real lawyer, Dave Foster would fit the bill just fine.   

Virginians need to pick a real lawyer as our next Attorney General, but that is not all.  We need someone is going to come to the job with the intent of enforcing the law.  

When it comes to litigation by or against the Commonwealth, the buck stops on the desk of the Attorney General.  It is the AG that makes the final call on whether to settle a case or press forward, and everyone in the office knows that.  We need an AG who is used to making the tough calls in high-stakes litigation.

And that is why we need John Brownlee as our next Attorney General.  Brownlee was not just any old U.S. Attorney--he was an important one, and one with a national reputation.     

But don't take my word for it. 

In May 2007, after a five year investigation, Mr. Brownlee convicted Purdue and its top executives of illegally misbranding their pain medication OxyContin.  The company and executives paid over $634 million in fines, and the executives were placed on 3 years probation and ordered to perform 400 hours of community service. 

The settlement was one of the largest financial penalties ever imposed on a drug company.  Moreover, Brownlee insisted that Purdue's top executives plead guilty to criminal acts.   

And consider this--prior to Brownlee's handling the Oxycontin case, Purdue had won hundreds and hundreds of lawsuits over Oxycontin.  The only time Purdue had paid even one dollar was as part of a settlement to the West Virginia AG's office, and that settlement was only $10 million or so.    

The New York Times claimed that ?Purdue suffered a crushing defeat in May at the hands of Brownlee when the company and three top executives pleaded guilty to criminal charges.?

On July 31, 2007, Brownlee testified before the U.S. Senate Judiciary Committee regarding his  investigation of Purdue and its executives. 

During the hearing, Senator Jeff Sessions (R-AL), referring to Mr. Brownlee, stated, ?you stepped up, you led the fight, you really crushed their defense ultimately, and I am sure with this much at stake, they had some of the best lawyers in America involved in defending the case.  This fine young United States Attorney committed several years of his life to this case and did something nobody else has done: put an end to this OxyContin abuse, which is an absolute national problem.? 

United States Senator Ben Cardin (D-MD) stated that Brownlee?s work ?will have a major impact on corporate conduct in our country."

Here is a question for all of the Cuccinelli supporters--what was the difference in Brownlee's case, which had a major impact on corporate conduct in the United States, and the hundreds and hundreds of cases Purdue Pharma won, or the one West Virginia case where they paid a paltry $10 million?  

The difference was John Brownlee himself.  Brownlee had the intelligence, the conviction, and the drive to do something no one had ever done before--and he did it with one of the smallest USAOs and of the smallest USAO budgets.  (For you Cuccinelli fans, USAO stands for "United States Attorney's Office.")
 
Brownlee is the kind of man we need for our next Attorney General.    

Does anyone ever recall the New York Times ever saying anything about Ken Cuccinelli? Has Ken Cuccinelli's work ever had an impact on anything?  I don't think so--you see, he is simply not significant enough in the grand scheme of things to register on the radar.
 
John Brownlee also prosecuted one of the most important national security cases of 2007.  In March 2007, after a six year investigation, Mr. Brownlee convicted ITT Corporation, the 12th largest supplier of sophisticated defense systems to the United States military, of violating the International Traffic in Arms Regulations (ITAR).  ITT was convicted of illegally transferring classified and controlled night vision technology to foreign countries, including China, and agreed to pay $100 million in penalties.  Mr. Brownlee was the first federal prosecutor to convict a major defense contractor of violating the ITAR.

The investigation and prosecution of ITT Corporation created important industry reaction.  Global Watch, a web based Newsletter of the International Import-Export Institute called the convictions ?record breaking? and ?precedent setting? and claimed that Mr. Brownlee?s work would have a ?significant long-term impact on the trade compliance community worldwide.? 

The Wall Street Journal wrote that John Brownlee?s ?ITT case is bound to send shivers through the U.S. defense industry, which increasingly views international trade as vital for long-term growth.?  

ITT Corporation admitted that between March 2001 and August 2001, ITT Corporation exported defense related technical data to Singapore, the People?s Republic of China and the United Kingdom without having first obtained a license or written authorization from the U.S. Department of State. The technical data included information about a laser counter measure known as a ?light interference filter? for military night vision goggle systems.  

In both of these cases, the buck stopped on John Brownlee's desk, and he answered the call.  Being a litigator, which is essentially what the Attorney General does, means having to make tough calls.  It also means having the experience and judgment to know when to press forward, and when to settle.   

Simply put, not all litigation experience is the same.  There is a world of difference between the litigation experience of Ken Cuccinelli and the experience of John Brownlee.  

John Brownlee also displayed his legal acumen in a number of important public-corruption prosecutions, environmental prosecutions, and myriad other sorts of litigation.  I mention the above cases because they are indicative of Brownlee's status as a legal giant, and because he accomplished these things with an office much, much smaller than the Attorney General's office.    

It also important to understand that Brownlee was appointed U.S. Attorney at the tender age of 35 years old, when he had a mere five or six years of legal experience.  This is important because he rose to the occasion, and proved that he was able to learn on the job and master completely new areas of law under the gun. 

Being a lawyer is not about always knowing the answer folks, but you had better know how to find the answer and where to look.  And then, you better have confidence in your abilities such that you stick by your answer when other people are second-guessing you.      

Dave Foster is also accustomed to practicing at the highest levels of the legal profession, and he might make a fine AG.  Foster also reads this blog, and did me the honor of making the only blog comment I know of by a candidate on this blog. 

However, in my opinion, although both Brownlee and Foster both represent the highest levels of the legal profession, Brownlee is preferable to Foster due to Brownlee's incredible legal experience, and the resources with which Brownlee worked. 
In all fairness to Foster, very few people can match Brownlee is this aspect.    

Moreover, it remains to be seen if Foster could make the switch from defensive litigation to affirmative civil enforcement.  Foster is accustomed to a deep-pocket litigation budget and clients with endless resources, and he would have neither in the OAG.  

By way of contrast, Ken Cuccinelli has practiced at the other extreme of the legal profession.  Cuccinelli's career has been spent processing a series of small, routine legal matters such as DUIs, divorces, child custody disputes, collection matters, and so forth.  There is no evidence of Cuccinelli ever doing anything out of the ordinary in his legal career.

The question Republican convention-goers have to answer, then, is this:  If you had to pick one of these three men to be your lawyer in high-stakes, complex litigation, against a cadre of skilled, highly capable lawyers and with your life, liberty, and property on the line, which one would you pick?

Virginia Republicans should pick John Brownlee as our next Attorney General.    

Full post as published by Virginia Qui Tam Law on May 19, 2009 (boomark / email).