Chapter 20
Department of Justice, 2014
It was an early afternoon in June 2014, and Joe Rannazzisi was uncharacteristically nervous. He was about to give Attorney General Eric H. Holder Jr. a thirty-slide PowerPoint presentation on his pending opioid investigations and he was having trouble uploading his slides. He turned to a department techie for help. Holder’s aides had told Joe and his boss, Michele Leonhart, that the attorney general had little time that day. Keep it tight, they warned.
Joe wanted to leave Holder with one key message: The legislation introduced by Republicans Tom Marino and Marsha Blackburn would deliver a body blow to the DEA’s ability to stop the illegal flow of pain pills. Joe knew that Marino had been trying to lobby Holder and others at Justice. The DEA had already warned in a memo that the bill “would constitute perhaps the greatest reduction in the Attorney General’s authority under the Controlled Substances Act since the Act’s passage in 1970.” Joe needed to ram home that message. The DEA wanted Holder to come out publicly against the bill.
Holder was an historic figure: the first African American attorney general. He was the top law enforcement official in the Obama administration. He was a liberal icon, but also a lightning rod on Capitol Hill, where he frequently clashed with conservative lawmakers. Two months earlier, on April 8, Holder had been summoned to a hearing before the House Judiciary Committee, the panel that oversaw the Justice Department. It was a packed, three-hour-and-forty-five-minute session where thirty-four members of the committee grilled Holder on a wide array of national and international issues. Five minutes before the hearing ended, Marino jumped in to ask Holder about prescription drugs. He complained that the Justice Department was treating the drug companies like “illicit narcotics cartels.”
Holder had announced that a spike in overdoses from heroin and prescription painkillers was causing “an urgent and growing public health crisis,” and he vowed that his department would combat the epidemic. People addicted to pills, struggling to fill prescriptions as the crackdown on opioid companies took hold, had turned to heroin, triggering a second wave of the opioid epidemic. Actor Philip Seymour Hoffman had recently been found dead in his New York City apartment after overdosing on heroin and other street drugs.
“I was troubled by some language that you chose,” Marino told Holder. “I inferred you seem to equate legitimate supply chain businesses to illicit narcotics cartels. I found that disappointing. This mindset, it is extremely dangerous to legitimate business.”
Marino continued, mischaracterizing the actions of the DEA. “My understanding is the DEA now is going to the drug companies and saying you should have realized that the amount of drugs that you were sending out to this particular individual, you should have made the determination that that individual was abusing drugs. And then these legitimate businesses are being held responsible for that and fined and perhaps put out of business.”
Holder gently pushed back, saying he didn’t mean to imply any such thing. “I do not want to cast that wide a net,” the attorney general said. He told Marino he would welcome another conversation.
“I would love to,” Marino replied.
Holder continued, “We cannot in our desire, our legitimate desire and one that I am pushing, to stop opioid use, which potentially leads to heroin involvement. We cannot lose sight of the fact that there are good people, sick people, good companies who employ good people who are trying to do the right thing.”
Marino’s time had expired, but he had one more thing to say. “If you find yourself not having something to do some evening, which you probably never do, I would love to discuss the issues,” he said.
“Okay,” Holder said.
Marino followed up three weeks later with a letter to Holder, telling him about his legislation and urging him to set up a meeting with drug industry executives. He added a handwritten note to the attorney general: “It would be great to work together on this.—Tom”
On June 4, Bill Tighe, Marino’s chief of staff, wrote to Peter Kadzik, Justice’s top congressional liaison officer, thanking him for trying to set up a meeting for Holder with the industry executives. Tighe asked Kadzik to coordinate with the industry’s point person: Linden Barber.
Marino’s overtures to the attorney general and his efforts to set up a meeting with industry set off alarms and a flurry of emails and memos within the DEA and Justice Department. “Linden Barber used to work for DEA,” Jill Wade Tyson, another Justice congressional liaison officer, told Kadzik in an email. “He wrote the Marino bill.”
DEA officials believed that it would be improper for the attorney general or others at Justice to meet with industry executives because many of the companies were under active investigation or in settlement negotiations with the department. Leonhart asked for a meeting with Holder to brief him on the agency’s drug industry investigations and to add her voice to the internal alarm.
Leonhart and Joe knew Holder had a complicated past. In 2001, in one of the earliest lawsuits against an opioid manufacturer, the state of West Virginia sued Purdue Pharma. Purdue had hired Holder, who was in private practice at Covington & Burling, to represent the company. The case settled in 2004 with Purdue agreeing to pay $10 million over four years while admitting no wrongdoing. Despite that connection, Joe thought Holder would do the right thing. He felt as though he understood Holder, partly because they were both New Yorkers. He believed the attorney general, who himself had experienced the loss of friends from heroin overdoses, would be sympathetic to his cause.
“They are attempting to take away your authority,” Joe told Holder, singling out the Marino-Blackburn bill as he began his PowerPoint presentation.
“I don’t understand what you mean,” Holder said.
The attorney general was juggling a massive number of issues ranging from terrorism to cybersecurity to civil rights violations and a botched gun operation on the southern border dubbed “Fast and Furious.” Joe knew Holder couldn’t be expected to know the intricacies of every piece of legislation. He explained what the Marino-Blackburn bill would accomplish with the change of a few words, making it nearly impossible for the DEA to issue Immediate Suspension Orders against drug companies. Instead of proving that a company was posing an “imminent danger to public health and safety,” the bill would force the DEA to show that the company’s actions presented “a significant and present risk of death or serious bodily harm.”
“Tom Marino is trying to do that?” Holder asked. “He was a former U.S. attorney.”
“Yes, Tom Marino is trying to do that,” Joe said.
The attorney general was surprised by something else on one of Joe’s slides. From 2010 through 2012, more people had died from prescription drug overdoses than from heroin.
“You’re telling me that more people are dying from pharmaceuticals?” Holder asked Joe.
Holder turned to his aides.
“Were we aware of this?” he asked.