The Whistleblower: ‘We weren’t trying to make headlines. We were trying to just follow the evidence’

This article features Government Accountability Project’s attorney David Seide and was originally published here.

Three years ago, East Texas federal prosecutor Joshua Russ was hours away from filing a landmark multibillion-dollar lawsuit in a Texas federal court against Walmart, accusing the retailer and its 5,000 pharmacies of illegally turning a blind eye to thousands of opioid prescriptions they knew to be suspect.

Families of opioid death victims had been notified. The Drug Enforcement Administration had signed off on the suit. Russ and colleagues in the U.S. Attorney’s Office for the Eastern District of Texas prepared for a legal war against the world’s largest corporation and its legion of law firms.

Russ was then 33 and one of the youngest civil division chiefs in DOJ history and leading one of the largest and most important public health suits in American history. He needed just one thing to file the historic lawsuit: final signoff of superiors at Main Justice in Washington, D.C.

He waited and waited and waited, but it never came.

A year later, Russ resigned in frustration.

“Corporations cannot poison Americans with impunity. Good sense dictates stern and swift action when Americans die,” Russ wrote in his resignation letter. “Now, cognizant of the many deaths it has caused, [Walmart] redefines shamefulness by claiming it is a victim.”

That same day, he filed a confidential whistleblower complaint with the DOJ’s inspector general alleging interference by the department’s political leaders, who he accused of blocking efforts by prosecutors to obtain key evidence and providing special treatment to Walmart.

In December, on Attorney General William Barr’s last day, the Justice Department finally filed a 160-page lawsuit accusing Walmart of thousands of violations of the Controlled Substance Act and seeking billions of dollars in damages.

While Russ and East Texas prosecutors have been off the case for nearly two years, their fingerprints are all over the legal and factual allegations made in the lawsuit.

Walmart denies it has done anything wrong and argues that DOJ’s lawsuit is flawed for several reasons and that Russ and other Texas prosecutors acted unethically in their dealings with the retailer.

“The Justice Department’s investigation of Walmart was riddled with misconduct and it ended with the Department filing an unjustified lawsuit in which it invented legal theories out of whole cloth to try to extract a massive payment from the company,” Walmart spokesperson Randy Hargrove said in a statement to The Texas Lawbook.

In an exclusive interview since resigning as co-chair of DOJ’s multijurisdictional Prescription Interdiction & Litigation Task Force in 2019, Russ told The Lawbook that he was “handcuffed by political appointees” and that he “wasn’t able to do the key investigation” into Walmart. Main Justice interfered, he said, in his team’s efforts to collect “key evidence core to the case.”

“I had never seen that in an investigation,” said Russ, who was interviewed last year by investigators for the U.S. House Judiciary Committee and is now a lawyer in Plano who represents whistleblowers reporting fraudulent use of federal funds.

“My blowing the whistle really had very, very little to do with the company itself,” Russ said of Walmart. “It was about the department’s conduct … I want the DOJ to be running better for the American public. I couldn’t resign without lodging that complaint.”

The OIG and the Justice Department declined to comment on Russ’ whistleblower complaint and declined to answer written questions provided by The Lawbook.

Lawyers, including former DOJ officials, say they are not surprised that Russ rebelled at a challenge to his integrity.

“Maybe one in 100 have the same type of skills he does, but one in 1,000 who will really put his money where his mouth is,” said former Eastern District of Texas U.S. Attorney Matt Orwig.

“He’s one of those people that you look at and think, ‘Gosh, I wish I would behave the same way in those same circumstances,’ and wonder if you would do it that right,” said Orwig, now a partner at Winston & Strawn.

Russ hired David Seide, a lawyer with a whistleblower advocacy organization, the Government Accountability Project, to help him navigate his dealings with the IG and Congress.

“[Josh’s] case is important because it’s all about the opioid crisis and participants who enabled it,” Seide said. “It’s fair to say that it wasn’t just the manufacturers of the products that have some responsibility, but it’s everyone else who participates in the distribution of narcotics throughout the system.”

Russ comes from a family of Texas trial lawyers. His grandfather, Bryan F. Russ, was a storied East Texas prosecutor who gained national attention because of his 1962 grand jury investigation into the death of a U.S. Agriculture Department official found dead while investigating legendary swindler Billie Sol Estes. He served 24 years as Robertson County Attorney.

His father, Bryan F. “Rusty” Russ Jr., was recently elected as district judge in Robertson County. And his brother, Trey Russ, represents the third generation to practice in Franklin at Palmos, Russ, McCullough & Russ — the firm founded by his grandfather.

“If he sees something that’s wrong, then he’s going to speak out against it,” Rusty Russ said.

There was never any question that Josh would follow in the family tradition. He said his best day as a lawyer was when he was sworn in as a federal prosecutor in 2015.

Russ’ first exposure to the devastating, widespread impact of opioids came in 2016 as part of the team that prosecuted a Dallas doctor who sold scripts for painkillers without ever seeing the patients.

The turning point in his education was observing the prosecution of two Texas doctors, Howard Diamond and Randall Wade, charged in connection with overdose deaths linked to their questionable prescriptions for opioids.

Diamond frequently prescribed the “Holy Trinity,” a dangerous drug combination of benzodiazepine, an opioid and a muscle relaxant. In 2016 alone, he prescribed 1.46 million dosage units of hydrocodone, 97% of which were for 10mg tablets, the highest strength available.

Their convictions helped put the Eastern District on the map for prosecuting opioid cases and “gave you a sense that the opioid crisis was here in our backyards,” Russ said.

But the investigation also revealed that an inordinate amount of their prescriptions had been filled by pharmacists at Walmart. A DEA agent testifying at Diamond’s 2017 detention hearing revealed a raid on at least one Walmart pharmacy in East Texas.

In 2018, the DOJ promoted Russ to chief of the civil division in the Eastern District of Texas, which followed Russ’ extensive work with criminal prosecutors in his district to develop a policy for parallel proceedings — criminal and civil — against defendants.

Heather Rattan, the lead East Texas prosecutor who initiated the criminal investigation into Walmart, approached Russ about working in parallel.

“People started seeing what we [the civil division] were doing, and it’s why people like Heather called me and started seeing the value of the civil division and what we could do,” Russ said.

According to a March 2020 investigative report by ProPublica, Rattan informed Walmart officials in spring 2018 that she was prepared to indict Walmart for violations of the Controlled Substances Act.

Walmart lawyers asked to meet with the criminal prosecutors to make their side of the case. Walmart, seeking a universal agreement, asked in writing that Russ also attend the meetings, according to the ProPublica report.

According to Russ and the ProPublica article, what followed was delay after delay from DOJ leadership in Washington, including a six-month cooling-off period mandated by Trump officials — during which Walmart’s counsel wrote to DOJ officials in Washington complaining about the investigation.

At the same time, Russ said his superiors in Washington blocked his efforts to collect key evidence from Walmart, which he believed was based on special treatment.

Arguments that Main Justice was waiting for the right time to file a lawsuit did not “square away with what was being said and happening at the time,” Russ said.

“There were delays for all sorts of reasons that kept changing,” he said. “I was saying, ‘If we’re going to keep investigating, let’s get the key information.’ I was trying to do what Main Justice wanted, but I wasn’t able to do the key investigation. But in the meantime, people were dying.”

DOJ officials apparently believed that Russ leaked hundreds of internal Walmart emails and investigative documents to ProPublica — an allegation that Russ told The Lawbook was false.

Russ said he was, at first, skeptical of making a case against Walmart.

“If you had told me at the beginning of the process where we ended up, I probably wouldn’t have believed you,” he said. “Even when we started to follow it, I was still very skeptical, like, ‘This has to be a one-off. It’s got to be a mistake or something.’ We were a very skeptical unit.

“We weren’t trying to make headlines,” Russ said. “We were trying to just follow the evidence.”