Sally Yates’s legacy of injustice

Long-time Power Line reader Howard Root abandoned his legal practice at Minneapolis’s Dorsey law firm and his work as general counsel of a medical device company to design highly useful medical products himself and to found the successful medical device company Vascular Solutions. He has nevertheless chosen to take a hike. In yesterday’s Wall Street Journal Howard gives a glimpse of his harrowing story with a local Minnesota angle. Here is the opening paragraph:

I quit. Friday I walk away from the company I started 20 years ago and grew into 650 U.S. employees and $1 billion in sales of over 100 new medical devices. I didn’t quit because I’m old—I’m 56—or want to play golf. The reason I sold my company and ended a career I loved is to avoid the risk of being criminally prosecuted under the federal government’s “responsible corporate officer” doctrine for the second time.

Howard alludes to the criminal charges brought against him — criminal charges that were brought against him for no good reason and supported by wild prosecutorial misconduct. Unlike many in his situation, Howard chose to put up a costly fight that resulted in a verdict completely exonerating him:

The “crime” for which they indicted me was a few salespersons’ words about our Vari-Lase Short Kit. Prosecutors claimed that my company’s salespeople told physicians the kit should be used to treat perforator rather than saphenous varicose veins. The prosecutors continued to pursue the case even though their own experts admitted that the kit was FDA-cleared to treat all varicose veins, that it never harmed a patient, and that it constituted 0.1% of our sales. Federal prosecutors told our attorneys they had “invested their blood, sweat and tears” and needed “a body” in return. That body was me.

Fortunately, my company had the money to fight back. Our day in court finally came in February 2016. The four-week trial ended with not-guilty verdicts on all charges, without our calling a single witness in our defense. Following the trial, one juror emailed me: “What the federal government did to you, your company and your employees is nothing short of criminal.”

In the background of Howard’s persecution was one Sally Yates. Indeed, Sally Yates was instrumental to Howard’s persecution. Yes, the Sally Yates — the Sally Yates turned by the media into a hero of the resistance to President Trump.

Here is the Yates angle:

Why did the prosecutors take this path? To comply with their marching orders, detailed in a five-page Justice Department memo written in 2015 by then-Deputy Attorney General Sally Yates. According to the Yates Memo, prosecutors must “focus on individual wrongdoing from the very beginning” of every corporate investigation and “fully leverage” resources to identify individuals for prosecution. Instead of a balanced approach to justice, the Yates Memo advocates an obsession with individual criminal prosecutions in order to recover “as much money as possible.”

The strategy works. In 2016 Justice boasted that it obtained $4.7 billion in “recoveries,” with a precisely calculated 610% return on investment in its “fight” against health-care fraud….

Howard first told a condensed version of his story in the 2016 Star Tribune column “I’m ‘not guilty,’ yes, but outraged by unjust prosecution.” He highlights the Yates angle in yesterday’s Wall Street Journal column “Sally Yates’s legacy of injustice at the Department of Justice” (unfortunately, behind the Journal’s paywall). Howard tells the full story in the riveting book (written with Stephen Saltarelli) Cardiac Arrest: Five Heart-Stopping Years As a CEO on the Feds’ Hit List.

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