It can't have escaped New York Attorney General Eric Schneiderman's notice that the voters in his state like to promote racket-busting prosecutors into higher office. It's happened so often it's almost become cliché, from Tom Dewey to Rudy Giuliani and beyond.
The problem, though, is that the canon of legal ethics holds that a prosecutor's first job is not to win in court, but to pursue justice. Just as much care must be shown to ensure the innocent are not brought to trial as is taken to win convictions of the guilty. It's a dichotomy that argues against novel interpretations of the law and groundbreaking, risk-taking prosecutions like the ones that are so familiar to us all, not from real life but from television.
The responsibility for evenhanded application of the law falls especially heavy on state attorneys general more than most other elected officials because of the enormous resources at their disposal. Unlike even a local, big city district attorney, an elected attorney general has nearly unlimited power and authority to bring cases of his or her own choosing.
Schneiderman, unfortunately, has used those powers to pursue a political agenda above and beyond the requirements of his office in furtherance of his own career.
Schneiderman is at the center, and may even have been the organizer, of what some suggest is itself a legally suspect effort by a group of state attorneys general to charge the Exxon Mobil corporation with having for a period of years lied to the public about the effects of man-made global warming. This effort, which began with the support of more than a dozen of his colleagues, has dwindled to a dogged persecution by just a few, intent on proving some kind of malfeasance was committed on the corporation's part in order to justify the time and expense spent on what is thus far a fruitless inquiry.
To understand why this principle is important, consider the cases brought by Schneiderman and Massachusetts Attorney General Maura Healey that have dragged on now for more than two years. Exxon Mobil has turned over a virtual forest full of internal documents that have produced no indictable information. In fact, the one thing they did do was disprove Schneiderman's initial argument, forcing him to revise the legal theory of the alleged underlying crime justifying the inquiry.
Both Healey and Schneiderman are gubernatorial wannabes. That makes it fair to question whether their pursuits in this matter are more political than legal, whether they are promoting themselves to the voters – in particular to the radical environmentalist groups that can make or break candidates in Democratic primaries – rather than in pursuit of justice.
It's a question some of their colleagues in other states are asking. In what can only be termed a striking rebuke, 11 of them filed a proposed amicus brief and accompanying motion for leave supporting Exxon Mobil's request for Judge Valerie Caproni of the U.S. District Court for the Southern District of New York to lift the stay of discovery and opposing Schneiderman and Healy's request for dismissal. The amici, represented by the Texas attorney general, include the attorneys general of Louisiana, South Carolina, Alabama, Michigan, Arizona, Wisconsin, Nebraska, Oklahoma, Utah, and Arkansas.
According to the amici's papers, Healey takes no position on their motion for leave, while Schneiderman "oppose[s] the filing of an amicus brief addressing a joint status letter."
In filing the brief, the other attorneys general expressed concern that the investigation by the defendants, Schneiderman and Healey, is heavily politicized, representing a misuse of prosecutorial power being used as a tool to silence anyone who disagrees with their views on global climate change. It is highly unusual for one sitting attorney general to criticize another's investigation; for so many to do so underscores the notion Schneiderman, Healey, and the others they were able to enlist in their scheme have been acting in bad faith almost from the start.
The issues at stake are not small ones. The amici assert what they refer to as the "unrestrained pre-textual" investigations of Exxon Mobil constitute an "unconstitutional abuse of investigative power" that attempts to use the courts to in essence prove which side is correct in ongoing debate over man-made climate change. They further argue the investigations violate Exxon Mobil's First Amendment rights by seeking to chill not just its free exercise of political speech and association but the rights of those who may hold the view dire predictions about the fate of the Earth resulting from the impact of carbon emissions on global temperatures are, if not merely in error, the result of a politically-driven fantasy.
Schneiderman, as the principle author of the legal conspiracy to get Exxon Mobil, deserves special attention for his misdeeds. He has abused his authority to the point it has drawn the attention of his colleagues from other states. If he is allowed leave to continue his investigations and to escape responsibility for his abuse, he will have set a pattern for his successor in New York and other states to follow.
This must not be allowed to happen, for it would imperil our rights if he were allowed to do so. It's time the legislature began to consider whether it is appropriate to remove him from office rather than waiting for the voters to do it in the next election.
Peter Roff is a former senior political writer for United Press International who can be seen regularly offering commentary and analysis on the One America News network.
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