A Huffington Post headline reads, “Academic Freedom Wins in Cuccinelli Climate Case.” Over at the New York Times, the headline is “Virginia Court Rejects Climate Skeptic’s Demand for Records.”
The written opinion issued on March 2 by the Virginia Supreme Court thwarting the state’s tireless Attorney General Ken Cuccinelli from obtaining Climategate records tells a much different story.
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Under Virginia’s Fraud Against Taxpayers Act, Cuccinelli issued what’s called a civil investigative demand, essentially a subpoena, to the University of Virginia to obtain records of Climategate figure Michael Mann.
Climate researcher Mann worked at the university when he developed his now-discredited “hockey stick” graph that incorrectly portrayed a sharp rise in the earth’s climate.
Mann obtained a series of government grants for his research at the university, meaning taxpayers funded his faulty “science.” The issue under FATA was whether he knowingly presented false information for purposes of getting taxpayer money.
Mann’s faulty conclusions were also used in making other government and private sector decisions and investments. Lots of money changed hands.
Since the records and data used by Mann are owned by the University of Virginia, Cuccinelli issued the CID to the university. If Mann made errors instead of purposely misrepresenting data, that would not be fraud. If Mann manipulated data or conclusions for the purpose of obtaining the grants, that would be fraud. The records would likely show which it was.
Virginia’s FATA gives the attorney general authority to investigate “persons” under the standard of “reason to believe” that fraud may have been committed. That standard is weaker than the Fourth Amendment’s requirement of probable cause, which protects private individuals and businesses against unreasonable government searches.
The University of Virginia, however, is not a private institution. It is a state school. Since this case involved taxpayer money going to a state institution, it seems that the Fourth Amendment might not apply.
The Virginia Supreme Court noted that FATA authorizes CIDs to be issued to “persons.” Like most statutes, “persons” is read to include incorporated entities. The university is incorporated, but as a state institution.
Relying on case-law precedent, the court concluded that while the university is incorporated, it is a state institution and is to be treated as a state agency. Under that analysis, one may conclude that the records are not subject to the protections of the Fourth Amendment. It seems like this should be a slam-dunk win for Cuccinelli.
But, as the court continued, a state agency is not a “person” under judicial precedent.
We can joke that government is less than human. However, since FATA authorizes investigations of only “persons,” the court then concluded that a CID may not be issued to a state agency, in this case, the University of Virginia.
Think about that. A government agency or a state university may engage in fraud to obtain taxpayer money, but may not be investigated for it. This authorizes a crime without the chance for obtaining a remedy. That seems like an absurd result, but that’s exactly what the court decided.
Unlike what the liberal press is reporting about the case, this is not a matter of protecting academic freedom or any other freedoms. This is a case of how one part of government protects lawbreaking by another part.
The Virginia legislature should get to work ensuring that government lawbreaking is subject to the same remedies and punishments as private lawbreaking. Better make that, all legislatures need to do so.
Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker.
