Victory for Objectivity by Sean Sublette

September 9, 2010

Last week, a judge in Albemarle County denied Attorney General Kenneth Cuccinelli's request to access internal emails from the University of Virginia.{} Cuccinelli's inquiry is directed at Dr. Michael Mann, who was an Assistant Professor at UVa from 1999-2005; Mann is now Director of the Earth System Science Center at Penn State.{} Cuccinelli suggests fraud may have been committed against the Commonwealth by Dr. Mann. The prelude to this story can be found on my original blog at Link (1) at the bottom of the page. {}

In Judge Paul Peatross's six-page decision, he addressed the key issues regarding Cuccinelli's Civil Investigative Demand (CID) for the emails.{} The entire decision can be found at Link (2) below.

For me, as an earth scientist, the issue is not about the immunity of the University from a CID made by a sitting Attorney General.{} The judge has ruled the university has no special privilege in this matter.{} The issue is whether or not there is sufficient objective reason to believe that fraud has been committed by Dr. Mann.

Cuccinelli often speaks of his ability to be objective. He is adamant that his view of climate change science is not motivating the CID.{} In an August statement, Cuccinelli indicated, "Our office is investigating whether a false claim was presented to the University to secure payment under government-funded grantsnothing more, nothing less."

Yet, in Cuccinelli's core argument to the Court, he abandons this principle and suggests enforcement of this CID is a subjective standard.

In Part One of his ruling, Judge Peatross writes:

"The Attorney General argues that the requirement of Section 8.10-216.10 is a subjective standard. In other words, the Attorney General has unbridled discretion to say he believes the University does have relevant material and that the Court does not have the ability to review any requirement he has "reason to believe" or not. The Court disagrees. In order for the Attorney General to have "reason to believe", he has to have some objective basis to issue a civil investigative demand, which the Court has power to review."

The judge continues:

"When the Court asked [Deputy Attorney General] Mr. Russell where it was stated in his brief the "nature of the conduct" of Dr. Mann that was a violation of the statute, Mr. Russell referred the Court to the first 15 pages of his Brief in Opposition to Petition. The Court has read with care those pages and understands the controversy regarding Dr Mann's work on the issue of global warming. However, it is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia."

Cuccinelli began this investigation on the premise that Dr. Mann potentially defrauded state taxpayers.{} Yet, four of the five grants in question were from federal sources.{} Nonetheless, Cuccinelli attempts to draw a connection between state and federal funds.

The judge states in Part Five:

"The Attorney General argued on August 20, 2010 that funds paid to Dr. Mann by a federal grant and placed into a University of Virginia bank account became funds of the Commonwealth. This Court disagrees. The Attorney General can only investigate funds paid by the Commonwealth for a grant to Dr. Mann."

Shortly after the judge issued his ruling, Cuccinelli released the following statement:

"While this was not an outright ruling in our favor, I am pleased that the judge has agreed with my office on several key legal points and has given us a framework for issuing a new civil investigative demand to get the information necessary to continue our investigation into whether or not fraud has been committed against the commonwealth."

I am certainly not an attorney, but it seems that Cuccinelli is either deliberately misrepresenting the Court's decision to preserve his own reputation, or he grossly misses the point.{} True, the judge does allow Cuccinelli to reissue the CID if he can show "objective reason to believe."

But remember, Cuccinelli filed a 40-page brief with the Court to make his case, and he still failed to demonstrate objectivity. {}The Union of Concerned Scientists has an excellent breakdown of his brief (Link 3). Cuccinelli has also failed in his attempt to show how federal research grants became state treasury money.

Eliminating the four federal grants in question leaves only the state grant of $214,700.{} Certainly, that is a significant amount of money on its own.{} But this leads to an important question for Virginia Taxpayers to ask themselves: "How much time and money have Cuccinelli and his staff put into this inquiry and its preparation?"

As I have mentioned in previous posts, Dr. Mann has been repeatedly investigated regarding his work.{} Every investigation has cleared him of any wrongdoing.{} Even his scientific detractors have denounced Cuccinelli's inquiry.

Yet, it goes on. Cuccinelli will try again. How far does this go?

Understandably, I have heard in many circles, "If Mann has done nothing wrong, he should have nothing to worry about."

In a world before 24-hour news cycles and pundit-driven issue shows, I may be able to agree.{} But that is not where we are anymore.{} The scenario I fear is not far-fetched.{} If Cuccinelli were to obtain the emails and find no wrongdoing, he could still issue an unfavorable press release with a couple of Mann's words taken out of context.{} These words would then travel across the blogosphere, talk radio, pundit-driven issue shows, and even traditional newscasts.{} The public would have initial emotional reactions to a poorly researched story, and an irreversible public narrative would be written to Cuccinelli's favor.

By the time an independent investigation was finished, the damage to Dr. Mann's public reputation would be done.{} This public narrative idea is not mine alone. Journalist Shelly Palmer has written a phenomenal four-part series regarding these new media narratives.{} You can read it at Links 4 through 7 below.

In the end, this is about objective reason, harassment, and abuse of power.{} And this is why, for the first time in my life, I can honestly say that a state official scares me.

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