Federal Investigations of Possible Corrupt Agreements by State Attorneys General who Threaten Criminal Prosecutions
Ronald D. Rotunda
On September 14, 2016, the Committee on Science, Space, and Technology of the House of Representatives held hearings on the refusal of Attorneys General of New York and Massachusetts to refuse to comply with congressional subpoenas. I was one of the witnesses. The Attorneys General claim "federalism" and "states' rights" allow them to ignore congressional subpoenas. Hardly. Congress has every right to investigate whether state attorneys general are part of a corrupt agreement with private interests seeking to harass.
Last spring, New York Attorney General Eric T. Schneiderman, and 16 other attorneys general (15 Democrats and one independent) announced that they are investigating energy companies, think tanks, and scientists who do not embrace global warming with the certainty of Euclidian geometry. At the press conference, Schneiderman said, "The bottom line is simple: Climate change is real; it is a threat to all the people we represent." (Bold added).
Other attorneys general echo his certainty. "Climate change has real and lasting impacts on our environment, public health, and the economy," said California Attorney General Kamala D. Harris. Money must be behind the refusal of some to believe in global warming. Shortly after that, Senator Sheldon Whitehorse (D. R.I.) warned us, "Fossil fuel companies and their allies are funding a massive and sophisticated campaign to mislead the American people about the environmental harm caused by carbon pollution," and so he urged the Department of Justice to prosecute all those involved.
The theory is that if you do not believe that mankind is causing global warming, then you may/must be engaged in a fraud, and that authorizes the state attorneys general to demand a decade's worth of documents (data, records, emails, etc.) and threaten criminal prosecution. Meanwhile, the state attorneys general insist that Congress has no authority investigate them—although the congressional subpoenas are hardly burdensome. Congress only asks for very recent data, does not threaten criminal prosecution (Congress has no power to indict), and does not have the extensive arsenal of legal weapons of every prosecutor, such as grand jury or search warrants.
Many Americans not believe that humans cause global warming or that global warming is a serious problem in spite of well-publicized research to the contrary. What to do? More research and publicity? No. Instead, threaten criminal litigation.
I assume that there is global warming and that humans are a major cause of it. That still does not justify criminal investigations of those who seek to prove the contrary. First, the burdensome subpoenas chill free speech, which protects competition in the marketplace of ideas. Congress has every right to discover if state attorneys general are beholden to private parties.
At Schneiderman's press conference, former Vice President Al Gore stood proudly saying, "We cannot continue to allow the fossil fuel industry or any industry" to "mislead the public" about "the health of our planet." Recently leaked documents show that George Soros is a major funder of Al Gore and his climate agenda. Soros uses one of his organizations to fund millions to support "political space for aggressive U.S. action" to combat global warming. Soros committed "$10 million per year for three years to Al Gore's Alliance for Climate Protection."
The American people have a right to know with which private groups Mr. Schneiderman was working, what the terms of the deal were when he launched this crusade, and what political and economic motives lie behind these prosecutorial actions. One subject of Mr. Schneiderman's subpoenas has asked for any "common interest agreements" he has with "private activists" in connection with his criminal investigations. He has refused to reveal them.
The prosecutors' inaction concerning Al Gore reminds me of the Biblical verse about the person who saw the mote in his brother's eye while ignoring the beam in his own eye. (Matthew, 7:3-5.) That beam is billionaire George Soros.
Second, the Government has repeatedly been wrong about what is scientific truth. That should give it pause when it tries to chill scientific inquiry while claiming it knows the truth.
There is the old saw about the three lies of the twentieth century:
the check is in the mail;
I'll love you just as much in the morning; and
I'm from the government and here to help you.
The three lies of the twenty-first century:
My BMW is paid for;
this is only a cold sore; and
You see, some things never change. Government often suffers from the fatal conceit that it knows what is best. History should teach more modesty.
In 1991, the World Health Organization's International Agency for Research on Cancer (IARC) classified coffee as "possibly carcinogenic," and warned us repeatedly about its potential cancer risks, yet Americans kept drinking coffee. Starbucks added new coffee houses almost as fast as rabbits multiply and never publicized WHO's finding. In 2016, WHO did an about-face and said it was wrong. Should the state attorneys general have investigated Starbucks for not proclaiming the warnings of WHO?
For decades, state and federal governments have assured us, with all the certainly that N.Y. Attorney General Schneiderman has about global warming, that their scientific and forensic analysis is trustworthy. Government prosecutors (like Mr. Schneiderman) routinely introduce this evidence to convict people and take away their liberty, fortune, and life.
We know now that the science was too often wrong. The president's advisory council of scientists and engineers now says, "It has become increasingly clear in recent years that lack of rigor in the assessment of the scientific validity of forensic evidence is not just a hypothetical problem but a real and significant weakness in the judicial system."
In the 1970s, Brookhaven National Laboratory claimed there was "unequivocal" evidence that salt causes hypertension. In April 2010, the Institute of Medicine urged the FDA to regulate the amount of salt that food manufacturers use in their products; New York City Mayor Michael Bloomberg convinced 16 companies to do so voluntarily, with the threat of government regulation in the background.
However, recent science does not support the common assumption about salt. A study that the American Journal of Medicine published in 2006, showed that the more sodium people ate, the less likely they were to die from heart disease. A 2011 study, which the Journal of the American Medical Association reported, found that that the less sodium that study subjects excreted in their urine—an excellent measure of prior consumption—the greater their risk was of dying from heart disease. We also know that when people cut their intake of salt, "the body responds by releasing renin and aldosterone, an enzyme and a hormone, respectively, that increase blood pressure."
For decades, the government told us that marijuana is a drug, with no legitimate use. During that time, the federal government funded advocacy research to show the dangers of marijuana. The federal government will soon reschedule marijuana. That change will allow researchers to study whether marijuana can be beneficial. Will the N.Y. Attorney General now be investigating those who engage in advocacy research to show the beneficial effects of marijuana, or investigate those who still insist that marijuana is harmful?
Red Meat, Egg Yolks, and Fat
In 1970 and for years after that, government urged us to avoid red meat, egg yolks, and whole milk (too much fat). We complied with the food pyramid. From 1970 to 2005, the American consumption of eggs and red meat fell 17 percent and whole milk by 73 percent, yet the incidence of diabetes doubled. Newer studies now show that people eating dairy products like whole milk have less of a problem with heart disease than those who do not. Those of us who followed the food pyramid paid the price.
Global Cooling
In the 1970s, some scientists confidently told us to fear global cooling. I'm old enough to remember the articles. In 1970 alone, the New York Times, the Washington Post, the Boston Globe, and the LA Times all published stories with headlines like "Scientists See Ice Age in the Future." Time Magazine's cover story on Jan. 31, 1973 was about "The Big Freeze." Two years later, Newsweek reported, "There are ominous signs that the earth's weather patterns have begun to change dramatically and that these changes may portend a drastic decline in food production — with serious political implications," because of cooling. The story concluded, that while "Meteorologists disagree about the cause and extent of the cooling trend,, they "are almost unanimous in the view that the trend will reduce agricultural productivity for the rest of the century" [emphasis added]. The Christian Science Monitor reported in 1977 the concern of John A. Eddy of the Harvard-Smithsonian Center for Astrophysics that, "Sunspot lull may bring on new ice age."
If some Americans do not believe that man-made global warming is a problem that demands government inference, perhaps it is because many Americans laugh when someone says, "I'm from the government and here to help you."
A distinguished Harvard scientist, using his models, has predicted that "If Greenland's ice sheet melted entirely, sea level would fall 20 to 50 meters at the adjacent coast," with the sea levels dropping as far as 2000 kilometers away.
This scientist, Professor Jerry Mitrovica (who is concerned about global warming), also has shown that for the last 2,000 years, there has been virtually no change in sea level on the Italian coast. During this time-period, earth suffered from a Little Ice Age from approximately 1300 to 1850, and a Medieval Warm Period from about 950 to 1250. Yet, the sea level appeared to stay the same. More recently, levels are rising slightly, but less than the standard models predict. These are all interesting and important questions to investigate, without fear of political prosecutions.
Professor Mitrovica has studied the mid-Pliocene ice age (three million years ago), when "the earth was as warm as we are about to get in the next 100 years," so it should be of interest to the issues of today. However, he says, "we don't really know how the polar ice sheets fared." We should study that issue as well, but in the political world of global warming, there is no sanctuary from political correctness.
What government should not do is chill the free speech of scientists. What Hippocrates said nearly 2,500 years ago about medical doctors applies to prosecutors: first, do no harm. The "ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
Posted in: Criminal Law, Environmental Law, Politics
Tags: Global Warming, Legal
Author: Ronald D. Rotunda
Ronald D. Rotunda was The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
Follow @rrotunda on Twitter
3 responses to "Federal Investigations of Possible Corrupt Agreements by State Attorneys General who Threaten Criminal Prosecutions"
jjoerg42 says:
is an odd article. On the one hand, absolutely: who better to go after
corrupt agreements among attorneys general than Congress, and no, their
subpoena power is not a question of state's rights. A legal analysis
of this would be interesting.
But the bulk of the
article is not dedicated to that point, but rather that the Congress has
good reason to suspect the integrity of the attorneys general. Which,
as we all know, is entirely irrelevant. Except as a purely political,
and not legal, question. The attorneys general can successfully resist a
spurious investigation because it will look bad for the congressmen,
not because they can't be subpoenaed. A challenge to the subpoena power
is a dare to Congress to escalate. If the congressmen are acting in
bad faith, they probably will not want to escalate.
So what is this article really about?
Brian Thornton says:
i'm going to ignore all of your points and instead share thoughts on one thing:
While I do not agree with the threat of criminal litigation or increased scrutiny solely on the basis of an aversion towards current scientific consensus, it deserves pointing out that there has been a great deal of research supporting this belief and the US, as a first world country, is unique in the amount of people that do not believe that global warming is serious or man-made. That said, research likely will not change minds, but instead the guarantee that our lives will not be inconvenienced because of a change so large as "clean energy".
If what I put forward is true, what ethical avenues are left with which to pursue social change? If this particular theory is seen as 'true' by a group, and ignoring that truth will have global, devastating consequences, are its supporters left with any avenue aside from forced conformity? Knowing that, are its detractors left with any avenue to pursue aside from shadow money and paid for studies?
I am a very big fan of fear mongering and bullying to attain my goals, although I have noticed that some people look sideways at me and seem to talk behind my back when I do those things. I'll post more once I have completed investigating those people.
bookfarce666 says:
Is not Fukushima the more immediate, complex environmental problem?
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