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A Grandstanding Attorney General

Why Ken Cuccinelli should drop his misguided case against climatologist Michael Mann

A. Barton Hinkle
May 4, 2011

What does Virginia Attorney General Ken Cuccinelli hope to find in the files from climatologist Michael Mann’s tenure at the University of Virginia? Presumably something subtle, such as an e-mail from Mann reading, “I can’t believe Virginia was dumb enough to give me state money on the basis of that pack of lies I wrote about global warming.”

It’s doubtful Mann’s files contain such a smoking gun. And from a legal standpoint, the hunt for one reveals the weakness in Cuccinelli’s case.

Recently the ACLU of Virginia and three other groups filed an amicus brief in the case. In it, they reiterate a point made by the Albemarle, Virginia judge who first turned down Cuccinelli’s request for Mann’s papers: “The court noted that the Attorney General’s own counsel could not clearly identify the ‘nature of the conduct constituting the alleged violation’ ” of the Fraud Against Taxpayers Act. In short, Cuccinelli has not said how Mann supposedly broke the law.

This is no minor detail. It’s like accusing someone of murder, and then trying to find a corpse. Or asking the cop who pulls you over “What’d I do wrong, officer?” and hearing him reply, “I dunno yet. Pop the trunk and let me have a look inside, would ya?”

Some of those who support the AG’s demand reason as follows: (1) Mann’s scientific conclusions have been questioned. (2) Mann took state money. (3) Therefore, the state may investigate Mann’s work. The skeptics seem to hope Cuccinelli will audit Mann’s entire body of work and find it flawed, thereby calling the whole theory of global warming into doubt. But the AG is not empowered to do anything like that; he is not a grand inquisitor putting all of climate science on trial. His job is to enforce the law. To that end, he should have some concrete grounds for thinking the law has been broken. Cuccinelli doesn’t.

Indeed, the AG forthrightly acknowledges that is why he has issued a Civil Investigative Demand for Mann’s papers in the first place: He wants to see if any grounds exist to bring charges. But this is like asking for a search warrant without probable cause, just on the off chance that something might turn up. That might be kosher in totalitarian states and Latin American juntas. In the U.S., the authorities are supposed to have more to go on than the fact that they don’t like the cut of somebody’s jib.

Cuccinelli’s defenders are right when they point out that waving the banner of “academic freedom” does not give professors at public universities blanket immunity. But that is a straw man. Nobody has said it does. And if Cuccinelli had reason to think Mann had spent his grant money on fast cars and loose women rather than on the research he was paid to do, then nobody would object to his investigation. That is precisely the sort of activity the Fraud Against Taxpayers Act is supposed to stop.

Instead, the AG is employing a very expansive interpretation of FATA in order to investigate something far beyond his bailiwick. As noted before in this space, that is not a position gracefully adopted by an attorney general who, in his lawsuit challenging ObamaCare’s individual mandate, quite rightly insists on a strict interpretation of the Commerce Clause.

Even some of Mann’s harshest critics take issue with Cuccinelli’s fishing expedition. Take Ross McKitrick and Stephen McIntyre, two well-known climate-change skeptics. McIntyre, a mathematician who edits the Climate Audit blog, said last year that “people are far too quick to yell fraud at the other side. I think such language is both selfish and counterproductive.” McKitrick, a Canadian economist who co-authored a critique of Mann’s hockey-stick graph along with McIntyre, says of Cuccinelli: “I have yet to see any credible basis for his inquiry.”

It is dismaying to watch conservatives, who ought to know better, willfully ignore the bigger question at stake. Perhaps an analogy might help. As legal philosopher H.L.A. Hart emphasized, there are two kinds of rules: Primary rules, which set boundaries for conduct, and secondary rules, which determine who gets to write the primary rules. A primary rule might say, “Men shall not wear hats in church.” A secondary rule could stipulate that rules about hats in church should be made by churches, not by Congress. So while a rule against hats in church might be a good idea, having Congress pass a law on the matter would not. What’s more, it would be a great mistake for church members to get so excited about the impropriety of church hat-wearing that they ran to Congress seeking a federal ban on the practice.

Global-warming skeptics are doing something just like that. They are so eager to see climate alarmists impugned that they don’t care who does it. But if they prevail in this star-chamber case, then they will have won what they profess to abhor: an increase in government’s scope.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch. This article previously appeared at Reason.com.



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