Fear & loathing at the DoJ

In the memoir Cardiac Arrest: Five Heart-Stopping Years as a CEO on the Feds’ Hit List (written with Stephen Saltarelli), Howard Root tells the story of his experience as chief executive officer of Vascular Solutions caught in the crosshairs of the federal government when prosecutors sought to put his company out of business and to send him to the big house. Howard touched on one aspect of his story in the Wall Street Journal column “Sally Yates’s legacy of injustice at the Department of Justice.”

Howard is one of the most amazing people I have ever met. Among other things, he is a corporate lawyer turned entrepreneur, inventor, and corporate executive.

Howard faced down the government. The jury didn’t think much of the government’s case. It returned with a verdict of acquittal on all charges after a day of deliberations, and that includes the time spent electing a foreman.

Howard’s case is important in its own way. The prosecution was based in part on prosecutorial misconduct. The crimes charged were bogus. The case represents fruit of the poisonous Yates Memo tree. Howard had the resources to fight the government’s unjust prosecution of him and his company, but the case exacted an enormous toll. It cries out for study and reform.

Howard thus seeks to engage prosecutors in discussion of his case and to tell his story in person to professional audiences of lawyers and businessmen for whom it holds immediate relevance. Last year, for example, he was invited to speak at the ABA Annual Health Fraud Institute held May 17-19, 2017 in Fort Lauderdale. In January 2017 the institute organizers selected Howard’s case to be featured, but that plan was destroyed in two steps.

First, none of the four prosecutors responsible for his case (Assistant United States Attorneys Bud Paulissen and Christina Playton of the Western District of Texas and Tim Finley and Charles Biro of the Department of Justice in Washington) would agree to show up at the conference to discuss the case. As a result, the case could not use be used for in-depth assessment. Instead, they picked United States v. Ayala, a case the government won. The prosecutors agreed to show up for that one. Even so, Howard was still invited to give the institute’s keynote address on his case.

Second, about two weeks later, when his keynote speech was placed on the agenda, the Department of Justice told the institute organizers that if Root was scheduled to speak at the conference, no one from the Department of Justice would show up — either at that year’s conference or ever again at future institute programs. Department of Justice participation in the Annual Health Fraud Institute is a practical necessity for such a program. The institute organizers accordingly rescinded Howard’s invitation to speak.

It happened again in connection with the American Conference Institute’s False Claims and Qui Tam Enforcement Conference scheduled for this month in New York City. Howard was in contact with the conference organizers to speak at the event, but the Department of Justice forewarned the organizers that they would not participate if Howard was on the program.

What is going on here? I wrote the Department of Justice to ask. Last week I submitted my inquiry to the department’s Office of Public Affairs:

I write for the website Power Line (powerlineblog.com) and have written about the government’s unsuccessful prosecution of Howard Root and Vascular Solutions in the Western District of Texas. Main Justice trial attorneys Tim Finley and Charles Biro had responsibility for the prosecution along with Assistant United States Attorneys Bud Paulissen and Christine Playton in San Antonio. The jury returned a not guilty verdict on all counts in February 2016. As I understand it, all Deparment of Justice representatives including those named above have refused to appear on any professional program at which Mr. Root also appears. Would you please provide me the department’s comment and explanation?

Thank you for your courtesies and consideration.

On Friday I received this response:

Greetings,

Thank you for your question. The Department of Justice declines to comment.

Best regards,
Lauren

Lauren Ehrsam
Spokeswoman and Media Affairs Specialist

I also called Assistant United States Attorney Bud Paulissen and left a voicemail message conveying my inquiry to him at his office in San Antonio. He has not responded.

I draw the inference that there is no Department of Justice policy that precludes the department’s participation at professional programs where Root also appears. What we have here is failure to communicate. It is a failure born of arrogance, irresponsibility, and cowardice.

NOTE: Howard told his story at a Center of the American Experiment presentation last year in downtown Minneapolis (video below). It is the most powerful presentation of its kind that I have ever seen. Here we have human interest, self-deprecating humor, life lessons, politics and proposed reforms, a scrappy struggle for success in the medical device business, federal regulation and the administrative state, criminal law, trial practice and (as in Howard’s Wall Street Journal column) Sally Yates and the Department of (In)Justice. And that’s not all. We also have Amy Klobuchar and the Star Tribune. It’s a riveting story and an incredibly rich case study. If you missed it when I posted it last year, you may want to check it out now.

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