“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'
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 , that decision was overruled.
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.
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. 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.
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. 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.
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.
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.
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.”
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