Holding the Government Accountable

Overruled: Top Justice Department Appointees Quash Felony Charge Against Monsanto

(Illustration: Leslie Garvey/POGO; Photos: dronepicr/Flickr, coolcaesar/Wikimedia)

This investigation was co-published with Yahoo News.

This spring, Justice Department prosecutors were on the verge of charging biotech giant Monsanto with a felony for illegally spraying a banned, highly toxic pesticide and nerve agent in Hawaii, not far from beachside resorts on Maui. But then, according to an internal April 2019 government document viewed by the Project on Government Oversight (POGO), that decision was overruled.

Monsanto, battling a slew of high-profile lawsuits contending that its Roundup weed killer causes cancer, had its Washington lawyers intervene at the highest levels of DOJ to stop the felony case, which has not been previously reported. A key attorney handling the matter for Monsanto, Alice S. Fisher, is a former senior DOJ official alleged to have played a part in keeping Jeffrey Epstein’s controversial plea deal secret from his victims more than a decade ago, although some U.S. officials have provided other reasons why victims were not notified. Fisher denies playing a decision-making role in the Epstein matter.

The felony case against Monsanto was halted after the company’s lawyers launched a last-minute appeal to the office of then-Deputy Attorney General Rod Rosenstein, according to sources close to the case. Rosenstein’s office, after consulting the Justice Department’s top political appointee on environmental law, then “directed” federal prosecutors “to resolve the Monsanto criminal case with misdemeanors only” before July 2019, according to the document.

A misdemeanor is a less serious offense, carrying reduced penalties; it is also less likely to attract public attention.

Such directives to career prosecutors are rare, former Justice Department attorneys say, and are issued “in only the most unusual of circumstances,” as one Justice Department document written years ago put it. By long tradition, Washington defers to the 93 U.S. attorney offices around the country to make the vast majority of prosecution decisions in criminal cases.

Yet the case of Monsanto illustrates that when top officials in Washington do review the decisions of career prosecutors, it often seems to be in response to appeals from deep-pocketed defendants who can afford to hire former senior Justice Department attorneys, like Fisher. And Fisher’s apparent success in getting charges against Monsanto minimized will likely bolster critics who contend that the powerful and politically connected get a better deal.

“Quite a few people involved believe this was clearly a felony involving a deadly, banned pesticide, with significant collective knowledge and evidence to bind the company to the violation,” said one longtime expert briefed on the situation, who requested anonymity because of the sensitivity of the matter. He called the decision by Rosenstein’s office “a misuse of discretion” at odds with the law.

Asked for comment on the ongoing case and how it is being handled, the Justice Department said it “applied all governing substantive sources of law to this case and followed all applicable Department enforcement policies.” The EPA had no comment; neither did Fisher, her law firm, Latham & Watkins, or Monsanto.

A source close to the matter says the turn of events in Monsanto’s favor has provoked deep frustration among career prosecutors and others at the Justice Department, as well as among Environmental Protection Agency enforcement officials.

Meanwhile, the apparent leniency toward Monsanto comes at a time of plummeting enforcement of environmental laws to the lowest levels in decades and a decline in DOJ’s criminal enforcement against corporations. It also comes amid a national furor over the ability of some defendants, notably Epstein, the financier accused of running an international sex-trafficking network involving underage girls, to use money to evade justice.

The Monsanto pesticide case is playing out as the Trump administration racks up what critics say is a dismal record of environmental regulation and enforcement. This summer, for example, the Environmental Protection Agency (EPA) decided not to outlaw a pesticide, chlorpyrifos, that its own scientists say harms brain development in children. The pesticide industry’s trade association, CropLife America, welcomed the decision, saying farmers need the chemical to kill insects that attack crops.

Government enforcement of environmental laws and regulations is “where the rubber hits the road and everything else hits the fan,” as Joel A. Mintz, a professor emeritus of law at Nova Southeastern University and former EPA attorney, wrote in his book Enforcement at the EPA, quoting an experienced insider. Enforcement is how the government ensures laws and regulations are followed. When there’s a violation, enforcement actions can lead to hefty penalties against companies and individuals. Within the government and with attorneys representing defendants, there’s often a debate about what kind of charges and penalties are appropriate, if any, when a company or individual illegally pollutes.

The government has significant enforcement discretion, and enforcement trends can change depending on the priorities of different administrations, among other factors, such as staffing levels. Cynthia Giles, head of EPA enforcement during the Obama administration, contends that the EPA under President Donald Trump is engaged in an “abandonment of enforcement.”

Giles and others point to a decline in initiation of civil enforcement actions, to the lowest levels in more than three decades. The decline has been documented in an internal EPA analysis, a report by the Environmental Data and Governance Initiative, and in a congressional hearing earlier this year. Civil actions can involve monetary penalties, compelling companies to clean up pollution, and other ways of addressing violations. The burden of proof in civil cases is lower than in criminal cases.

“The message is very clear that the federal cop is not on the beat,” Giles told POGO.

Criminal enforcement has also declined. EPA’s referrals to the Justice Department for potential criminal prosecution are generally less common than civil actions. Environmental cases the Justice Department criminally prosecutes tend to involve more serious wrongdoing, such as “significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations,” according to analysis by the Environmental Crimes Project at the University of Michigan Law School. Criminal convictions can lead to time in prison.

Lately, criminal referrals and prosecutions have become particularly rare. In 2018, the EPA sent fewer referrals and the Justice Department filed fewer prosecutions for environmental crimes than in any year in the last quarter-century, according to government data compiled by the Transactional Records Access Clearinghouse and analyzed by Public Employees for Environmental Responsibility.

When it comes to violations involving pesticides, “very few cases get referred to the Department of Justice,” said Bill Jordan, a former deputy director of the EPA’s pesticides office.

One of those few: In 1993, a small Arizona pesticide application company and its president both pleaded guilty to felony and misdemeanor charges for illegally disposing of methyl parathion and injuring county inspectors in the process—the same pesticide Monsanto sprayed on Maui in 2014. Back in 1993, that pesticide was only “restricted,” not banned as it has been since the end of 2013.

But, unlike what any Monsanto executive is facing, penalties for the Arizona violation included time behind bars. The company president was sentenced to a year and a day in prison.

The Monsanto case began the morning of July 15, 2014, when employees of the biotech giant sprayed a gallon of pesticide called methyl parathion across two acres of corn and wheat growing in Maui, according to Monsanto records. Hawaii’s year-round growing season is ideal for testing the impact of pesticides and other chemicals on Monsanto’s genetically engineered crops sold in the U.S. and around the world.

The allegedly illegal spraying of a banned nerve agent occurred just a short walk from beachside resorts in Kihei on the island of Maui, at one of several experimental and seed production farms operated by Monsanto. “A teaspoon of methyl parathion would kill you,” said one U.S. government expert, “and several other people as well.”

A teaspoon of methyl parathion would kill you.

Before EPA banned the chemical outright in 2013, it bore a “restricted” label which advised that it should not be sprayed in winds above 10 mph. But weather data show the wind on July 15, 2014, on Maui was blowing at an average of more than 18 mph, gusting to more than 23 mph, potentially sending the highly toxic substance well beyond the target zone.

Although there was no reported evidence of harm caused to humans by the incident, spraying methyl parathion “would plainly violate” the ban, William Jordan, a former deputy director of EPA’s pesticides office, told POGO in an email. People spraying the pesticide, and likely their corporate employer, “would be liable for the violation.”

“Monsanto is the expert at this, so it’s not like some farmer who may not be aware of the law,” added Fred Burnside, a former senior EPA criminal enforcement official. In his opinion, the apparent downgrading of charges by Main Justice in the Monsanto case “is odd and unusual.”

It’s not the only time Rosenstein’s office unexpectedly directed prosecutors to water down the severity of violations brought against big companies. Last year, for example, the New York Times reported that then-Deputy Attorney General Rosenstein overruled career prosecutors who sought to bring criminal charges against the Royal Bank of Scotland for an allegedly major fraud against buyers of mortgage-backed securities before the financial crisis.

But after the bank’s legal defense team—which included two former deputy attorneys general—met with Rosenstein, he directed prosecutors to pursue civil charges instead, ProPublica reported.

Monsanto’s allegedly illegal spraying came to light when someone in Hawaii leaked photos of the company’s spray logs, which documented application of methyl parathion (under the trade name Penncap-M).

Word of the little-noticed logs was posted on the internet soon after the spraying occurred and again in 2016 on a Facebook page dubbed “Maui’s Dirty Little Secrets” run by environmental activists on the island. (Monsanto also disclosed its spraying of the chemical in a report published on Maui County’s website, inaccurately describing the substance as “restricted” when it was in fact banned).

EPA’s criminal investigators also got involved, as did federal prosecutors.

But because of a conflict of interest in the Hawaii federal prosecutor’s office, the U.S. attorney for the Central District of California took over the case. That office’s career personnel made plans to charge Monsanto with a felony violation of the Resource Conservation and Recovery Act, a law governing hazardous waste storage and disposal.

Meanwhile, Monsanto was confronting an onslaught of lawsuits from cancer victims who have so far been awarded hundreds of millions of dollars for being sickened after exposure to the company’s Roundup weed killer. Monsanto continues to deny Roundup is responsible and has appealed many of the awards. After Monsanto consummated its 2018 merger with Bayer, the German chemical and pharmaceuticals behemoth, those lawsuits helped batter Bayer’s stock to its lowest levels in years, with Bayer reportedly proposing to pay $8 billion to settle all the claims.

The Monsanto consultant’s memo quotes a White House adviser: We have Monsanto’s back on pesticides regulation.

Documents recently made public in one of the Roundup lawsuits against Monsanto include a July 2018 memo, from a company consultant, labeled “Strictly Private and Confidential” that describes the Trump administration’s opposition to further regulating glyphosate, the chemical name for Roundup.

The Monsanto consultant’s memo quotes a White House adviser: “We have Monsanto’s back on pesticides regulation.”

In the 2016 presidential election cycle, Monsanto’s political action committee and employees gave a total of $526,856 to the GOP, and $167,113 to Democrats, according to the Center for Responsive Politics. Monsanto donated $25,000 to fund President Trump’s inauguration in January 2017. About a week before the inauguration, Trump met with the CEOs of Monsanto and Bayer in Trump Tower to discuss the companies’ prospective merger.

In the Maui spraying case, Monsanto and its defense team at Latham & Watkins, a global law firm with a robust corporate defense practice, had been quietly negotiating with career prosecutors, hoping to engineer a reduction of the felony charge.

When government lawyers resisted, Monsanto’s attorneys — including Latham partner Alice S. Fisher — launched their appeal to a higher authority: to the office of then-Deputy Attorney General Rod Rosenstein, say sources following the matter. And Fisher, prominent in Republican legal circles and well known to the White House, was in a good position to help orchestrate the pitch. A one-time head of DOJ’s criminal division under President George W. Bush, Fisher was interviewed by the Trump administration in 2017 as a potential replacement for James Comey as head of the FBI.

To decide how Monsanto’s last-minute gambit should be handled, Rosenstein’s office turned to Jeffrey Bossert Clark, chief of the department’s environmental division. According to those following the case, Clark argued aggressively that DOJ should not over-criminalize Monsanto’s conduct. Instead, he suggested charging the firm only under a misdemeanor statute.

The directive to substitute Clark’s opinion for the tougher recommendation reached by prosecutors and others long working on the case carried the day. And so, Rosenstein’s office overruled career prosecutors, despite the department’s standing guidance to its lawyers to “charge and pursue the most serious, readily provable offenses.”

The ability of some defendants to get preferential treatment has been raised before, including by former Justice Department officials.

Speaking as part of a 2017 Federalist Society panel discussion in Washington alongside Fisher, George J. Terwilliger III, who served as Attorney General William Barr’s deputy under President George H.W. Bush and then as acting attorney general, acknowledged that the appearance of unequal access can impact the “public perception of fairness in the justice system.” “In my day,” he said, “who got heard depended a lot on who was asking, frankly.”

Terwilliger also raised concerns about how these kinds of appeals could affect the department’s operations if they happened regularly. “You obviously could bring the whole system grinding to a halt if everybody that disagreed with an [assistant U.S. attorney] somewhere in the field was able to appeal up the chain to Main Justice.”

Terwilliger did not respond to a request for comment.

Main Justice in Washington appears to have granted at least a handful of appeals by deep-pocketed defendants during Fisher’s time as head of the criminal division at the DOJ from 2005 through 2008. In 2007, for example, lawyers hired by Purdue Pharma, manufacturer of Oxycontin, made their own bid to overrule career prosecutors by targeting top officials, including Fisher.

After a four-year investigation, those prosecutors had planned to indict three Purdue executives on felonies that could have sent them to prison for concealing information demonstrating the company knew the opioids it manufactured were highly addictive and being widely abused, according to the New York Times.

But Purdue’s defense team, which was advised by former U.S. Attorney Rudy Giuliani, met with senior DOJ officials to undercut the decision, according to the Times. Citing four lawyers familiar with the internal discussions, the newspaper said Fisher and other senior officials made clear they did not support felony indictments, paving the way for the three Purdue executives to plead guilty to lesser charges.

Neither Fisher nor Purdue offered any comment.

The most notorious appeals involving Fisher, however, were in the criminal case against Epstein more than a decade ago. The case led to an unusual misdemeanor plea deal with the office of then-U.S. attorney in Miami, Alexander Acosta. The deal allowed Epstein, who was accused of having sex with minors, to serve just over a year in a Florida jail, much of it on work-release. Widely viewed as far too lenient, criticism of the arrangement led to Acosta’s resignation as labor secretary earlier this year. Epstein, who faced new charges related to trafficking minors, recently committed suicide in jail.

At several points before he pleaded guilty in 2008, Epstein’s lawyers lobbied Fisher and other top DOJ officials to abandon the case against their client. That effort was unsuccessful, but a subsequent lawsuit brought by Epstein victims unearthed an extensive correspondence between Epstein’s attorneys and the Justice Department showing that they also used appeals to Fisher to argue against notifying Epstein’s victims of the plea agreement. These letters were written during a critical time period when Acosta's office shifted from favoring notification to backing off from doing so.

On Nov. 28, 2007, Epstein lawyer Ken Starr, a former senior DOJ official and independent counsel who investigated President Clinton, wrote to Fisher requesting a meeting “at your earliest convenience.”

Over the next week and a half, Epstein’s attorneys exchanged a flurry of letters with Acosta, including two where they invoked an anticipated discussion with Fisher as a reason to delay notifying victims about the plea agreement. Acosta replied that his office was legally obligated to notify victims and was on the verge of doing so. But, while a notification letter was drafted, Acosta also wrote that he would tell his prosecutors to delay sending out the notification. Weeks later, Acosta wrote that his views had shifted on informing the victims, also noting that he had spoken with Fisher about the likelihood of further appeals. Acosta’s office never notified the vast majority of the more than 30 victims about the plea agreement before Epstein pleaded guilty in the summer of 2008.

At a July 2019 press conference, Acosta explained his legal reasons for not notifying victims, never mentioning Fisher.

While it is unclear what role Fisher may have played, Epstein’s attorney Ken Starr portrayed the appeal to her as key to keeping victims in the dark. He wrote to the DOJ in April 2008 that the victim notification “letter was only halted by an eleventh-hour appeal to [Assistant Attorney General] Fisher.” Starr did not respond to a request for comment.

Fisher denied Starr’s allegation in a statement issued to POGO, saying, “I did not make any decisions related to victim notification and any statement to the contrary is demonstrably false. The public record also makes clear that the Criminal Division firmly rejected Mr. Epstein’s lawyers’ appeals.” Referencing a May 15, 2008, letter to one of Epstein’s attorneys, she told POGO that, “the Division concluded only that the U.S. Attorney could properly use his discretion to authorize prosecution in this case.”

Regardless of Fisher’s role, critics argue that the appeals to Main Justice had an effect.

“The fact is that Main Justice was willing to take months to review appeals at multiple levels from Epstein’s attorneys and that was a card that he played to delay justice,” said attorney Paul Cassell, a former federal judge and prosecutor who represents some of Epstein’s victims, in an interview with POGO.

A federal judge ruled earlier this year in the Epstein victim lawsuit that Acosta’s office had violated victims’ legal protections under the Crime Victim Rights Act by keeping the plea negotiations “secret” and not notifying them. The judge wrote that this was fundamentally unfair as the victims did not have the “same opportunity” as Epstein “to affect prosecutorial decisions before they became final.”

In the case of Monsanto, there are no specific victims who can contest the Justice Department’s handling of the case, and the July deadline cited in the government document for charging Monsanto is passed. Sources following the matter say details of reduced, misdemeanor claims against the company, which could entail financial penalties, must still be worked out.

Sources also suggest that Monsanto could be fined more than $5 million, and face possible deferred prosecution for a felony if the company fails to carry out all requirements of any misdemeanor plea to which it agrees. But the penalties could end up being far less, they say.

Whatever happens, Main Justice in Washington will have to endorse any settlement, and “the ink on this deal is not yet dry.”