The Folly of Kenneth Cuccinelli by Sean Sublette

Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency sir, at long last? Have you left no sense of decency? -{} Special Counsel for the Army Joseph N. Welch to Wisconsin Senator Joseph McCarthy, 9 June 1954

Last week, a legal case I have been following for nearly two years came to a close.

The judgment came down on the same day as the horrific tornado outbreak in the Ohio and Tennessee Valleys, so it did not get a lot of initial press.{} But the judgment was the best piece of news I got that day.

I have blogged at length about this case (links below), in which Attorney General Kenneth Cuccinelli issued a Civil Investigative Demand (CID), essentially a subpoena, ordering the University of Virginia to turn over all of the email correspondence of Dr. Michael Mann.{} Mann worked as an Assistant Professor at UVa from 1999-2005, and he is currently Director of the Earth System Science Center at Penn State.

The Attorney General suspected fraudulent work on the part of Mann, but never really explained why he had those suspicions.{} He told one of our reporters that the work being done in the field of climate research was "bad science," although numerous independent scientific societies, including the United States National Academy of Sciences, would disagree with that assessment.

Cuccinelli has never demonstrated objective probable cause for a CID.{} He would only reference the illegally obtained email cache from the University of East Anglia's Climate Research Unit as grounds for issuing it.{} And even in the wake of those emails, several independent investigations cleared Mann of any impropriety.

UVa fought the CID in Albemarle County Circuit Court and won.{} According to the court, Cuccinelli failed to demonstrate why he needed these emails.{} Undeterred, he made some modifications, issued another CID, and then took his initial argument to the Virginia Supreme Court.{} On March 2, 2012, the Supreme Court ruled against Cuccinelli.

Many defenders of UVa in this case have framed it as an attack on academic freedom, which it is.{} Some, however, have argued that UVa, as a state agency, is exempt from any CID issued from any sitting attorney general.

The majority opinion of the Court appears to agree regarding an exemption for UVa.{} From the Court's ruling:

we set aside the CIDs with prejudice, on the different ground that the University of Virginia, as an agency of the Commonwealth, does not constitute a "person" under the Fraud Against Taxpayers Act and therefore cannot be the proper subject of a CID.

This does suggest the University is exempt.{} Admittedly, I am not a big fan of this portion of the ruling.{} But, notice what Justice Elizabeth A. McClanahan, who issued the dissenting opinion regarding the exemption of UVa, wrote toward the end of the ruling:{}

I agree with the [Albermarle County] circuit court that this description failed to sufficiently describe "the nature of the conduct constituting the alleged violation[s]," as required by Code 8.01-216.11. That is, it did not sufficiently state what the Attorney General suspected Dr. Mann did that was "false or fraudulent" in violation of Code 8.01-216.3(A).

Deep down, this has never been about immunity, but about probable cause.{} How soon we forget the 1950s and Wisconsin Senator Joseph McCarthy.{} He vividly illustrated why it is a bad idea for a paranoid politician to abuse and further his (or her) power by poring over data and gleaning little out-of-context nuggets to drum up fear and suspicion.{} Cuccinelli's actions are an unjustified and crass abuse of the power of his office.{} He betrays the trust of the citizens of this Commonwealth.

In response to the ruling, Cuccinelli stated, "From the beginning, we have said that we were simply trying to review documents that are unquestionably state property to determine whether or not fraud had been committed.{} Today, the court effectively held that state agencies do not have to provide state-owned property to state investigators looking into potential fraud involving government funds."

His statement is, at best, disingenuous.{} We have a separation of powers for a reason.{} The system of checks and balances is fundamental to how our government operates.{} It works at the state level as well as the federal level.{} The court may have been split about the immunity of UVa, but it was unanimous in affirming that Cuccinelli went too far.

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Previous blogs

1.{}6 May 2010:

2. 11 May 2010:

3. 21 May 2010:

4. 13 July 2010:

5. 9 September 2010: