White-Collar Crime

'Out, Damned Spot!' The DOJ Wages A Petty Retribution Campaign Against Howard Root

The DOJ threatens to take its ball and bat and go home rather than allow anyone to hear that they've lost a case.

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Sometimes, this column just writes itself. This, my friends, is one of those times.

As regular readers of this column know, last year I did a three-part series on Cardiac Arrest, a fantastic book written by former medical device CEO Howard Root and his coauthor (and former defense attorney) Stephen Saltarelli. The book is the best examination of prosecutorial abuse that I have ever seen, and I spent three columns doing what I could to help it inch its way up the Amazon charts. I reviewed the book, then I interviewed Mr. Root, and finally, in the last column, I interviewed his lawyers. The book remains available on Amazon (only $7.99 on the Kindle! — affiliate link), and I can’t recommend it highly enough.

It’s hard to pinpoint the best thing about the book, which is probably why it took me three columns to write about it. Is it how the book limns the banalities of prosecutorial misconduct? Is it the hilarious way that Mr. Root talks about the lawyers in the case — both the government’s and his own? Is it the fact that one rarely gets to see a CEO of a public company stand up to the government and win? It’s really hard to say.

But if you wanted to pin me down, I would admit that the last part is probably the best — seeing, in vivid detail, exactly what it takes to beat the government and then spike the football in the end zone after you do it.

As you might imagine, the book was not well-liked in the Justice Department. A recent post by Scott Johnson at the Powerline blog post shows just how unpopular it was and how unbelievably petty DOJ is being about the book. Rather than, I don’t know, admit that it lost fair and square, DOJ instead is acting like a disgruntled third-grader who didn’t get picked for the team he wanted.

Here’s the story, according to Powerline: Last year, Mr. Root was invited to speak at a health-care fraud conference sponsored by the ABA in Florida. The panel would likely have been a blockbuster, because Mr. Root pulls no punches.

What happened next has both an expected part and an unexpected part. It’s the unexpected part that made me write this column.

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First, the expected part­ — none of the prosecutors who went to trial against Mr. Root and lost were willing to appear on the panel with Mr. Root. That’s not surprising. No one likes to get their noses rubbed in a loss, and the government really, really hates to lose. (That’s why many prosecutors are deathly afraid of going to trial.) So instead of having Mr. Root speak on a panel to talk about that case, the ABA decided to devote the panel to another case.

But they knew they had gold in Howard Root, so the conference organizers came up with another plan to feature him — they’d give him the keynote. Imagine that — the former CEO of a billion-dollar public company, who took on the government and won, giving what would inevitably be a barnstormer of a keynote address at an ABA conference probably not known for barnstormers.

This is when it gets good — and kind of unbelievable.

Did the government maturely agree to grimace through the speech, the way that defense attorneys have to grimace through speeches given by DOJ attorneys at conferences all the time (I’m looking at you, ABA White Collar conference). Did the leadership think to itself, “Well, we lost this one, but fair is fair, and it will at least be interesting to hear what he says”?

No. They actually tried to kill his speech.

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I am not making this up: According to Powerline, DOJ told the conference organizers that if they let Mr. Root do the keynote, DOJ not only would not send anyone at all to the conference that year, it also wouldn’t send anyone to the conference next year.

Please pause for a moment and think how unbelievably petty that is. As Powerline rightly points out, “Department of Justice participation in the Annual Health Fraud Institute is a practical necessity for such a program.”

Faced with what would be a death blow, the organizers bowed to the pressure and yanked Mr. Root’s invitation.

But DOJ still wasn’t done. Last month, Mr. Root was scheduled to speak at a qui tam conference in New York. Had the government perhaps mellowed a year later?

Nope. Once again, they told the conference organizers that no one from DOJ would participate if Mr. Root remained on the program.

When Powerline gallantly asked DOJ for comment about this, it received the following response: “Thank you for your question. The Department of Justice declines to comment.”

Now there’s a profile in courage for you.

If you know anyone at DOJ who is involved in this inanity, I encourage you to contact that person and tell them to stop this ridiculousness and take their medicine like a big kid. Sometimes you win, and sometimes you lose. Childish overreaction like this corrodes the professionalism and the perception of the Department of Justice, and no one — win or lose — should tolerate it.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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