Pro Publica reports on the Trump Justice Department’s squelching of a federal criminal investigation that arose in Texas of opioid dispensing practices at Walmart pharmacies. The massive story also includes political angles in the ongoing civil investigation. From the article, a description of events in 2018:
The prosecution team had come to Washington to try to save its case. Joe Brown, the U.S. attorney for the Eastern District of Texas, led the group, which included Heather Rattan, an over-20-year veteran of the office who had spent much of her career prosecuting members of drug cartels.
They first went to the Drug Enforcement Administration’s headquarters to meet the acting administrator, Uttam Dhillon. There Rattan laid out the evidence. Opioids dispensed by Walmart pharmacies in Texas had killed customers who had overdosed. The pharmacists who dispensed those opioids had told the company they didn’t want to fill the prescriptions because they were coming from doctors who were running pill mills. They pleaded for help and guidance from Walmart’s corporate office.
Investigators had obtained records of similar cries for help from Walmart pharmacists all over the country: from Maine, North Carolina, Kansas and Washington, and other states. They reported hundreds of thousands of suspicious or inappropriate opioid prescriptions. One Walmart employee warned about a Florida doctor who had a “list of patients from Kentucky that have been visiting pharmacies in all of central Wisconsin recently.” That doctor had sent patients to Walmarts in more than 30 other states.
In response to these alarms, Walmart compliance officials did not take corporate-wide action to halt the flow of opioids. Instead, they repeatedly admonished pharmacists that they could not cut off any doctor entirely. They could only evaluate each prescription on an individual basis. And they went further. An opioid compliance manager told an executive in an email, gathered during the inquiry and viewed by ProPublica, that Walmart’s focus should be on “driving sales.”
After they finished their presentation, Dhillon sat back in his chair and exclaimed, “Jesus Christ,” according to five people familiar with the investigation. “Why aren’t we talking about this as a criminal case?”
That’s precisely what had occurred seven months earlier: Rattan had informed Walmart that she was preparing to indict the corporation for violating the Controlled Substances Act. Indictments of Fortune 500 companies are unheard of, let alone of one with $500 billion in annual revenue and over 2 million employees. But Rattan, with support from her boss Brown, believed the evidence justified such an unprecedented step.
Before the Texas prosecutors could file their case, however, Walmart escalated concerns to high-ranking officials at the DOJ, who then intervened. Brown was ordered to stand down. On Aug. 31, 2018, Trump officials officially informed Walmart that the DOJ would decline to prosecute the company, according to a letter from Walmart’s lawyer that lays out the chronology of the case.
The prosecutors pressed on but have failed at attempts to exact penalties against Walmart, which employed a powerful law firm and alleged misconduct by investigators. Walmart says the criminal probe was “meritless” and the prosecutors had used it to extort an unjustified civil penalty.
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The article details how Walmart did not take action against suspected pill mill doctors as other chain pharmacies did. And it wasn’t the company’s first encounter with drug regulators.
More troubling to the federal investigators, for much of this period, Walmart was operating under a secret settlement, known as a Memorandum of Agreement, with the DEA, reached in 2011 and running four years. (The existence of the MOA has not been previously reported.) According to that agreement, a Walmart pharmacy in California had been filling prescriptions “for other than a legitimate medical purpose and/or outside the usual course of professional practice in violation of federal and state law” and had “dispensed controlled substances to individuals that [the pharmacy] knew or should have known were diverting the controlled substances.”
A character in the article is Bob Balfe, a former U.S. attorney in Fort Smith and now a Walmart lawyer. He was a key negotiator along with outside lawyer Karen Hewitt.
Most of the interactions between the government and the Jones Day lawyers were politely choreographed. Hewitt and Balfe were the picture of affability. “When you meet with them, it’s like those two chipmunks,” said one person familiar with the investigation, referring to the Looney Tunes characters Mac and Tosh, gophers that speak with posh British accents. “‘After you.’ ‘No, after you.’ They are so polite.”
The two sides largely agreed on the facts, but differed completely on whether they justified a criminal charge. And a dispute over the use of a single word would poison relations between the two sides, with Walmart using the word as a cudgel to attack the prosecutors.
The word in question was “embarrass.” According to two people familiar with the prosecution, Rattan told the Walmart side that the company should feel embarrassed by its conduct. Walmart would portray it differently, claiming that Rattan said her goal was “to embarrass Walmart” with a criminal indictment.
When prosecutors didn’t back off Walmart began a PR offensive on its effort to curb opioid abuse. Coincidentally, Ivanka Trump visited a Texas Walmart, near the prosecutors’ office to learn how Walmart trains workers.
Legal favoritism and cronyism are hallmarks of William Barr’s leadership of the Justice Department, now a political arm of the president. (Which reminds me: If you want to be chilled to the bone, read George Packer’s report in The Atlantic on how the Trump administration has corrupted government, including, but not limited to, the Justice Department and FBI. It is why I say, without hyperbole, that the future of the democratic republic of the U.S. is on the line in November.)
The civil investigation goes on. It has caught the attention of Congress and House Democrats may hold hearings. Walmart has objections to the Pro Publica reporting, noted in the article.