Gillibrand Learned How to Defend Tobacco's Dirtiest Secrets as a Young Lawyer
Some 400,000 Americans die every year from smoking, and if you want the grim details of how this killing ground came to be, you might ask New York's newest senator. Before she went into politics to make people's lives better, Kirsten Gillibrand had a first-class education in how the cigarette industry tears them apart.
The lessons came as an eager young associate at the big law firm of Davis, Polk & Wardwell on Lexington Avenue. She started there in 1991, age 25. Her employers promptly placed her on the front lines on behalf of its hugely important client, Philip Morris, Inc. The tobacco giant was battling criminal and civil lawsuits accusing it of luring generations of smokers into death and disease, and it had enlisted vast numbers of lawyers in its defense. By all accounts, Gillibrand—then still the unmarried Kirsten Rutnik—was one of the most able and hardworking. Over the next nine years, before she moved on in the spring of 2000, the tobacco world and its tangled nasty secrets were a large part of her life.
Gillibrand has said since, and maintains today, that as a lowly associate, she had no say in this assignment, that she was pressed into duty and simply gave it her lawyerly best. "You don't get to choose as a young attorney," said spokeswoman Rachel McEneny last week. Well, had she ever, in all of those nine years, asked off the dreaded tobacco case?
"Good question," said McEneny. "I'll check." The answer came a few hours later: "No."
Maybe that's because tobacco is where the action was. Voluminous records pried loose through multiple lawsuits show that during Rutnik's assignment, she debriefed tobacco's top engineers on everything they did to keep cigarettes in the hands of millions. She spent hours with those who fashioned the filters that were supposed to screen out the harshest elements, but which still let smokers suck toxic doses into their lungs.
The firm sent her to Europe at least four times. There, she toured laboratories that the company maintained in Belgium, Switzerland, and Germany in order to keep the disturbing results of their biological studies out of the hands of American courts and the public. Most infamous of these was INBIFO—Institut fur Biologische Forschung—in Cologne, where scientists experimented on the toxicology of tobacco.
How secret was this place? "They wouldn't even let me go there," says William Farone, who spent seven years as director of applied research at Philip Morris's Richmond, Virginia, base in the 1970s and '80s. "That was where all the carcinogenic testing was being done on animals," says Farone. "They didn't want those records subpoenaed. In the U.S., they're denying smoking causes cancer; in Europe, they're proving that it does."
In January 1996, five years after she was drafted into big tobacco's campaign, Kirsten Rutnik scheduled two full days of interviews at INBIFO, records show, including a four-hour session with director Dr. Wolf Reininghaus, author of such works as "90-Day Inhalation Study" and "Tumor Formation on Rats." She was back that summer for more meetings, and visited again in 1997 and 1998. Her work on the research facility was hefty enough to constitute an entire binder that sat on the shelf of Charles R. Wall, Philip Morris's general counsel and supreme commander of the army of lawyers trying to hold back the tide.
Gillibrand's handlers insist that her tobacco-defense work is old news. The issue was put to rest last year, says spokeswoman McEneny, when her Republican opponent failed to score with voters, even after he outspent her nearly two to one, running TV attack ads on the subject and dispatching reams of documents to reporters. Indeed, if you look at a debate clip of GOP candidate Sandy Treadwell accusing Gillibrand of running secret missions for her client in Germany, you can see Gillibrand's mouth curl slowly into a smile and then burst into laughter. Ho, ho, ho. Even after the Albany Times Union's excellent James Odato wrote a detailed story about her role, Gillibrand batted the issue aside. She claimed to the Times Union's editorial board that her job was nothing more than "sitting in conference rooms going through subpoenaed documents."
Actually, Gillibrand could have legitimately put her tobacco ties into the political rearview mirror had she simply said that, as a public official, she wanted nothing more to do with the industry or its money. But contributions from Philip Morris—since renamed "Altria"—and her tobacco co-workers at Davis, Polk & Wardwell have swelled her campaign war chest, so far with more than $150,000. "When you start out in fundraising, you reach out to the people you had relationships with," explains McEneny.
Has she ever considered not taking tobacco money? "No," says the spokeswoman after a pause.
That's an interesting decision for someone who spent almost a decade rooting about in smoking's secret cellars. "Given what she must have learned about the activities of the tobacco industry as their lawyer, you would think it would make it hard for her to take their campaign contributions in her new role as a member of Congress," says Russell Sciandra, the American Cancer Society's Albany representative.
And then there's her other tobacco connection. Just as Gillibrand's work for Philip Morris was ending in 2000, the company hired her father to represent it on state matters. At the time, veteran lobbyist Douglas Rutnik had a direct line into Governor Pataki's office, since, having divorced Gillibrand's mother, he was living with top Pataki adviser, Zenia Mucha. Rutnik stayed on tobacco's payroll for six years, stepping off only when Pataki left office.
The same archives that list Kirsten Rutnik on more than 1,000 tobacco industry documents also list her father on a few others. For instance, a June 12, 2000, fax from a Philip Morris attorney instructs Doug Rutnik to check with other advisers before meeting about company tax matters with Pataki's counsel, James McGuire. Lobbying records show that, for $6,250 a month, Doug Rutnik pushed Philip Morris's agenda on smoking bans and court damages. "He may also have worked on food issues," an Altria official in Virginia said last week.
This tobacco tie has been overblown as well, insists McEneny. "She doesn't follow her dad's work arm-in-arm, not at all," she says.
Gillibrand voted just last week to hike cigarette taxes to pay for child health insurance. She cites that move, and an earlier one to extend tobacco regulation, as evidence of her independence from the industry. Actually, Altria supported the regulation bill, and she took contributions from company officials shortly after meeting with them on the legislation.
Clifford Douglas, a leading public health advocate who helped drive federal investigations of the industry, said he couldn't help but notice Gillibrand's strong tobacco ties when she was selected last month as New York's new senator. "She wasn't just a worker bee, sitting in a library looking at documents," says Douglas. "She was directly involved in defending Philip Morris and its top scientists against some of the most serious and important issues raised in litigation."
But maybe the new senator was deeply disturbed by what she learned during her tobacco excavations. Was she? "Great question," said McEneny. "Put it in an e-mail, and I'll get it to her for the record." Sadly, the record ended right there.
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