May 17, 2010
Climategate Taxpayer Fraud Investigation Draws Ideological HeatBy Mark J. Fitzgibbons
Virginia Attorney General Ken Cuccinelli has used the power of government to seek documents from the University of Virginia regarding its former professor and Climategate figure of "hockey stick" fame, Michael Mann. Mr. Cuccinelli is investigating whether Professor Mann engaged in fraud to obtain taxpayer money to fund his research.
The civil investigation is making some people sweat, and it has raised howls of protest from sources ranging from the liberal Washington Post to the libertarian Reason. Academicians are protesting it as a threat to academic liberty. Daniel Lashof, director of the Natural Resources Defense Council's Climate Center, penned a letter calling Cuccinelli's actions "political harassment of climate scientist Michael Mann."
Virginia Congressman Jim Moran, chairman of the Interior and Environment Appropriations Subcommittee -- which should be investigating Climategate, but isn't -- chimed in: "One can only conclude that [Cuccinelli's] investigation is motivated by the desire to silence those with whom [he] disagree[s]."
Mr. Moran, not known as a defender of the First Amendment, may want to be more circumspect lest he arouse suspicions that he doth protest too much. As Jason Zweig reports at The Wall Street Journal, congressional committee chairs such as Mr. Moran may use "insider information" garnered through their committee positions to direct their personal investments. That would be unlawful for you or me. The issue of global warming has already affected financial markets, making certain members of the political class very wealthy.
As someone who has fought unlawful and abusive government investigations, including ones by state attorneys general, I am more than just a little aware of how government abuses its investigative powers. They are abused for political reasons, and out of sheer incompetence.
I agree, however, with Moe Lane's abbreviated assessment that "the Commonwealth of Virginia can investigate this because Mann took state money to do his research." But the issue is more complex and goes deeper than just taking government money. After all, when government is everywhere, who these days doesn't have some link to government money?
Grant recipients solicit grants by making certain representations. Professor Mann's research was funded through a grant of taxpayer money. An intentional misrepresentation of a material fact to induce the grant would constitute fraud at common law.
Mr. Cuccinelli bases his investigation in statutory authority given him under the Virginia Fraud Against Taxpayers Act, which provides considerable detail about what the attorney general must do to bring such an investigation. The statute also allows Virginia to intervene on behalf of actions filed by private individuals under what are called qui tam lawsuits. Private citizens in Virginia, therefore, could bring actions under the fraud statute that presumably would allow access to the University of Virginia's records at issue, provided the litigants complied with the criteria in the qui tam statute.
If Mr. Cuccinelli's investigation does not meet the statutory thresholds, then a court could limit his investigation. I doubt that Mr. Cuccinelli, a litigator with an engineering degree, failed to nail it down. Also, academic freedom is not a recognized legal privilege that could be raised to block an investigation into alleged fraud to obtain taxpayer money.
Many state officials with whom I'm familiar often make investigative demands or threats in other contexts without complying with stringent procedures comparable to those found in the Virginia Fraud Against Taxpayers Act. They issue demands against private entities that do not receive taxpayer funds. Often, those state officials, including attorney general offices, refuse to even state their grounds or cite to statutory authority when they make their demands or threats.
Besides the statutory authority under which Mr. Cuccinelli is proceeding, another aspect of his investigation involves the doctrine of "visitation" described in the 1819 landmark decision Trustees of Dartmouth College v. Woodward. Visitation involves the authority to control and investigate. The government has far greater visitation power over public entities than over private ones.
Michael Mann was employed by the University of Virginia, which is not a private institution, but a state school. If the University of Virginia were a private school, it would have a stronger argument to oppose a government investigation. However, being a state entity, the University of Virginia has little room to argue that the government may not control and investigate it.
The public-private distinctions under the doctrine of visitation are lost on liberal statists, who often ignore reasonable cause or even lawful authority to investigate private entities and matters, but are guardians at the gate blocking investigations of public institutions and taxpayer-funded left-wing projects.
Professor Mann's work would not only serve as a basis for society-changing legislation such as cap-and-trade, but it would also influence the direction of many hundreds of billions of dollars in taxpayer money and the financial markets. Fortunes and fame are often incentive for fraud.
Contrast, if you will, how The Washington Post took sides against Attorney General Cuccinelli with its much more favorable coverage of New York Attorney General Andrew Cuomo's subpoena of eight banks "focusing on the relationships between the banks and the agencies that rated certain mortgage-related securities packaged by the banks and sold to clients."
We do not, of course, hear outrage from Congressman Moran and others when Democrats engage in show hearings and other investigations of the private sector, even when the private entities were acting or speaking as required by law. The contradictions on the left are startling.
The case for looking into Professor Mann's records for potential fraud to procure taxpayer money looks strong compared to the specious investigations -- unrelated to abuses of taxpayer money -- in which Democrats engage on a regular basis.
Leftists seem to believe that strong rhetoric trumps facts (and isn't science based in facts?) and claim the conservative Mr. Cuccinelli's investigation as an ideologically driven witch hunt. His investigation, however, exposes the prejudice against conservatives using the power of government, and the extent to which liberals are eager to protect even potential fraud if it serves their ideology and their pockets.