Howard Root: A letter to my prosecutors

I’ve written over the years about my friend Howard Root, the founder and former chief executive officer of Vascular Solutions. After his acquittal on the criminal charges brought against him and his company, Howard announced his resignation on the pages of the Wall Street Journal in the February 2017 column “Sally Yates’s legacy of injustice at the Department of Justice.” Howard tells the story of his case in the riveting memoir Cardiac Arrest and in his May 2017 Power Point presentation on it for the Center of the American Experiment (video at bottom).

With the fifth anniversary of his acquittal coming up, Howard has sent off a letter to the prosectors in his case: Walter L. “Bud” Paulissen, Christina Playton, and Timothy Finley. Howard has authorized us to share it with Power Line readers. Here it is.

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Dear Bud, Christina and Tim:

I thought I would remind you of our upcoming anniversary. On February 26, it will have been five years since the day the jury returned its unanimous “not guilty” verdict on all 10 counts of your misguided criminal prosecution of me and Vascular Solutions. Forgive me if I don’t send you a present.

Calling it “misguided” is as generous as I can be – others have called it much worse. You might have heard that, right after the verdict, one of the jurors contacted me to give me her view of your prosecution. “What the federal government did to you, your company and your employees is nothing short of criminal,” she emailed. When I called to thank her, she said she wanted me to get back to business and for you three to be fired. As damning as that is, it’s even worse when you remember that the only testimony she heard was from your witnesses, since we never called any of ours to testify at trial.

Then, a few months after the verdict, I heard from your never-testifying but frequently­ in-court expert witness, Dr. Robert E. Lee. When I asked Dr. Lee what he thought about your case, he told me that he didn’t have anything bad to say about Vascular Solutions, our medical devices or our FDA clearances. It was then I finally realized why you never called Dr. Lee to testify, but now I’m disgusted you failed to disclose his exonerating expert opinion as required by law, and instead decided to carry on with your misguided prosecution.

You also might have heard that our trial judge, Royce Lamberth, discussed our case a few years ago at the FDLI Annual Conference. In his remarks, Judge Lamberth commented on the same issue that our lawyers at King & Spalding explained to you in multiple letters and conversations before trial — that you were pursuing a prosecution for off-label promotion of an arguably on-label use. As explained by Judge Lamberth:

[I]t was very difficult for the government to get a guilty conviction after their primary witness and a high level FDA employee — along with many others, I should add — testified that the device’s previously approved indication could be interpreted to include perforator veins.

After getting those reactions, I was optimistic that someone from DOJ would eventually investigate your misconduct to prevent what almost happened to Vascular Solution from happening to others. It’s sickening to realize how few Americans could withstand your type of assaults, grossly incompetent as they were, merely because they can’t afford to spend the $25 million I spent to stop your destruction of my business and me.

As you know, I didn’t just sit back and wait for DOJ to start investigating your misconduct. Instead, I had my King & Spalding lawyers, all former federal prosecutors, request an OPR and OIG investigation. But after a lengthy wait with no request for additional evidence, I learned that an investigation of prosecutorial misconduct by an office staffed by career prosecutors will almost always result in summary dismissal, which it did here.

I then approached Sens. Grassley and Lee and asked them to send a letter to DOJ requesting a specific investigation of your unauthorized disclosure of confidential grand jury testimony and your abusive threats to witnesses. But it seems that even high-ranking Senators requesting a misconduct investigation are entitled to no more than a cursory rejection from DOJ.

As you’re also probably aware (but almost certainly haven’t read), I wrote and published the book Cardiac Arrest describing your misguided prosecution. So far, my book has sold over 10,000 copies in all formats, and I’ve given over 100 talks to groups on our case. Because of this publicity, you can rest assured that your failures in the courtroom will live forever in the minds of many, and your failed prosecution will follow you forever on Google and Amazon.

One thing you might be surprised to hear is the most-asked asked question I receive after giving my talk. That question is, “why would DOJ prosecutors act this way?” My answer is to explain the motivations of many career prosecutors (an arrogant greed for winning rather than the attainment of justice) and the lack of effective DOJ supervision. More than one former prosecutor approached me after my talk to say that I had that answer exactly right, but they could never say that in public for fear of retaliation from their former colleagues.

I have to give you credit for accomplishing at least one of your goals. After experiencing your abuse, and even after winning a complete exoneration, I returned to Minnesota with no desire to continue to run my medical device company. As soon as I got back, I knew that I needed to get out, because I realized that if I continued, this could happen again. So in 2016 I hired an investment banker and sold Vascular Solutions for $1 billion, and then I retired from medical device development at the age of 56.

What happened next was as predictable as cold is to a Minnesota winter. The large medical device company that paid the highest price to buy Vascular Solutions (as a public company CEO, I had to maximize shareholder value) slashed our R&D projects, eliminated our apprentice program and moved manufacturing jobs to Mexico in order to increase short-term profit. Not a single new medical device has been developed since I left the company four years ago (we launched between five and 10 each year when I was CEO), and many of our employees have lost their jobs while opportunities for new college graduates to enter the medical device world have been eliminated. Congratulations, your mothers must be very proud of your accomplishment.

After selling Vascular Solutions, for financial reasons I didn’t need to find a new job, but I’ve stayed busy with a business/hobby of starting and now selling an electric boat company. I’ve also spent time advising criminal defendants to help them navigate their pathway through the criminal injustice system. I’ve enjoyed this advisory role so much that I’m now in the process of re-activating my law license so I can work more closely with defendants on a pro bono basis to defeat malicious prosecutions like yours.

Alas, I doubt I’ll ever see Bud in the courtroom again, now that he’s become an immigration judge. But I’m pleased that Bud’s legendary abusive rants will be limited to immigration cases now, and, since he’s the judge and not one of the lawyers, he won’t be able to ditch his work to others and slither to the back of the courtroom as the case implodes, just as he did in our case to the point he was hard to spot in the gallery during your closing arguments.

I might encounter Christina in the courtroom once again, now that she’s been promoted to Criminal Division Chief at the U.S. Attorney’s Office in the Western District of Texas. While her outstanding work ethic justifies her promotion, her lack of ethics by personally attacking my sales reps for making money in a FOR-PROFIT medical device company while living in a huge house paid for by a husband who was making even more money as a physician in a FOR-PROFIT medical practice should have disqualified her from any unsupervised position in justice.

Last, but certainly not least, I see that Tim is still working as a Trial Attorney in the Consumer Protection Division of DOJ. I sincerely hope that in the last five years Tim has gotten the professional help he needs. I’m no psychiatrist, but based on what everyone in the courtroom saw as he delivered his “bamboozled” closing rebuttal (now immortalized in my book), Tim was crying out for an intervention. I can’t comprehend how Tim could continue to work in a criminal prosecution role without receiving frequent and deep professional counseling.

Finally, I want to make one request. Now that five years has passed and all of the misconduct investigations have been swept away, there’s no remaining obstacle to a public discussion of went wrong with your prosecution. While I haven’t checked, I’m relatively certain the organizers of the National Institute on Health Care Fraud would still feature our case for a deep dive at their next annual meeting, especially since they rarely get a case where the defendant wins a complete exoneration. I’ll pay my way to the conference and will give you (or y’all for the Texans) a full release to say whatever you want about me, I know my lawyers will attend, so all that’s needed is for you to say yes and for DOJ to finally stop blackballing me from presenting at any conference attended by a DOJ employee. After five years, don’t you think it’s finally time to tell your side?

I look forward to a reply from at least one of you.

Happy anniversary,

Howard