By Rachel Levinson, Senior Counsel, American Association of University Professors
Update (12:46 p.m., 5/14/10): Under the Fraud Against Taxpayers Act, the recipient of a Civil Investigative Demand can ask the court to modify or set aside the demand on the basis of procedural flaws or the recipient's "constitutional or other legal right or privilege." Because the period of time to petition the court is shorter than the period to respond to the demand itself, the deadline for the University of Virginia to file such a petition had been Thursday, May 20. It has recently been reported, however, that the University plans to ask Cuccinelli for more time to file such a petition. If Cuccinelli refuses, the Act suggests that the court cannot extend the time on its own; no word yet on when the request will formally be made or what Cuccinelli's response will be.
In 1951, at the height of the McCarthy era, the New Hampshire legislature passed a statute intended to root out subversive persons and organizations in the state. Several years later, the legislature followed up with a resolution that gave the state attorney general nearly unfettered power to conduct investigations, determine whether subversive persons still lingered in the New Hampshire woods, and launch criminal prosecutions.
The attorney general, Louis Wyman, enthusiastically took to his task, targeting Paul Sweezy, founder of the Socialist magazine Monthly Review. Sweezy proved to be an unwilling witness, refusing to answer such questions as whether he and his wife were active in the Progressive Party and declining to describe the substance of a guest lecture he had delivered to a humanities course at the University of New Hampshire. Frustrated by Sweezy's refusal to answer, Wyman had Sweezy adjudged in contempt in court and thrown in county jail.
Sweezy sued, arguing that the questions violated his rights under the First Amendment. At the Supreme Court, Chief Justice Warren admonished the New Hampshire legislature and its eager attorney general in the only opinion that garnered more than one joiner (his compatriots were Black, Douglas, and Brennan):
[L]egislative investigations ... are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as ... freedom of communication of ideas, particularly in the academic community.
Warren went on, "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made .... Scholarship cannot flourish in an atmosphere of suspicion and distrust."
Ken Cuccinelli apparently did not get the memo. Cuccinelli, you may recall, is the Virginia state attorney general who briefly introduced lapel pins featuring a Confederate-era state seal with the Roman Goddess Virtus' traditionally bare breast modestly covered up. That folly, which Cuccinelli is now desperately trying to downplay, pales in comparison to Cuccinelli's current mission: to intimidate scientists, scholars, and the state's flagship university by using five-year-old grant applications as the hook for a sweeping civil subpoena demanding years worth of documents from the University of Virginia.
On April 23, Cuccinelli filed a "civil investigative demand" (CID) targeting climate scientist and former UVA faculty member Michael Mann. Mann is the progenitor of the so-called "hockey stick" graph of global warming, showing man's effect on the rise of the world's temperature. Mann was also at the center of a scandal last year involving email messages among scientists corresponding with a climate center at East Anglia University in Britain. The email messages led to charges that some climate scientists, including Mann, were changing or suppressing data that might cast doubt on the man-caused global warming hypothesis. Those charges were later determined to be groundless by multiple scientific and academic bodies, including the National Academies of Science and Penn State, where Mann has been a faculty member since 2005.
Despite those findings by bodies with the scientific and academic expertise to engage in legitimate peer review of Mann's work, Cuccinelli apparently thought he could do better. His civil investigative demand, which relates to Mann's applications for state grant funding (presumably dating from his time at UVA), invokes the Virginia Fraud Against Taxpayers Act (FATA), which imposes civil liability for knowingly submitting a "false or fraudulent claim" for payment under a variety of circumstances.
The demand for information is breathtaking in its scope. It requests all communications from 1999 to 2005 that Dr. Mann sent to, received from, or sent in reference to any of 39 other scientists and every single research assistant, secretary, and administrative staff member he ever worked with, as well as a raft of documents and work product related to the grant applications and Dr. Mann's findings.
This appears to be nothing less than a politically-motivated fishing expedition. So why is Cuccinelli fishing?
Cuccinelli has acknowledged that he has a political agenda, and he seems to be pursuing it with every means at his disposal. As he told one reporter, "you know I'm a politician and I ran on an agenda for attorney general winning the most votes that anyone has ever gotten in history and I'm doing exactly what I said I was going to do." (Apparently the role of the attorney general does not include coordinating with the governor, even in the same party; as Governor Bob McDonnell told a Washington Post reporter, "What the attorney general's theories are - I only know what I read in the paper, and I've not spoken with him.")
Cuccinelli has also said that he does not believe that human activities caused global warming. Eight days before he served the university with the subpoena, he filed suit against the Environmental Protection Agency, contending that the "Climategate" emails constitute after-discovered evidence - despite the academic and scientific consensus suggesting otherwise - that should compel the EPA to re-open public discussion over regulation of fuel standards.
Most chillingly, Cuccinelli appears to believe that his office is better-positioned than experts in the academic and scientific communities to assess the validity of the complicated field of climate science. In addition to demonstrating a profound misconception of the scientific process, the potential chilling effect of this tactic is staggering. Scientific theories are expanded, modified, or discarded with regularity; hauling up scientists on charges of fraud when they explore ideas that may ultimately be revised or disproven will put the brakes on scientific progress.
In the meantime, the University of Virginia has indicated that it intends to comply with the Attorney General's demand. Justice Frankfurter fretted in the Sweezy case over "the grave harm resulting from governmental intrusion into the intellectual life of a university." Ken Cuccinelli and the UVA Board of Visitors should heed that warning. When scholars and scientists are bullied into avoiding controversial areas of research, it is the public that loses.
[Image via Wikimedia Commons.]