What the Cuccinelli Climategate case really means

Mark J. Fitzgibbons
Don't waste your time reading the liberal press about this one.

The Virginia Supreme Court issued a decision in the case in which Virginia Attorney General Ken Cuccinelli sought emails from the University of Virginia about Michael Mann's "hockey stick" graph, made famous by the Climategate fiasco.

Cuccinelli issued a subpoena under the Fraud Against Taxpayers Act (FATA), which authorizes investigations of suspected fraud to obtain taxpayer money. The court ruled that Cuccinelli could not get the emails. But the decision was not about academic freedom or anything like it, although the liberal press would like you to believe that it was.

In fact, the decision highlights one of the many ways that government is allowed to break the law.

FATA allows the Attorney General to investigate suspected fraud used to obtain state funds. The Attorney General may issue a civil investigation demand, which is essentially a subpoena, to any "person" suspected of using fraud to obtain state funds. Any "person" includes any corporation.

The University of Virginia is incorporated. However, it is a state school, and the Virginia Supreme Court therefore deemed it to be a state agency based on Virginia precedent.

Citing a line of cases giving state agencies preferential treatment compared to "persons," the court ruled that a state agency is not a "person" subject to FATA investigations. The court ruled against Cuccinelli's subpoena for that reason, and that reason alone.

So, while Mr. Cuccinelli would be free to investigate fraudulent acquisition of taxpayer money by individuals or private corporations under FATA, he is not free to investigate fraudulent acquisition of taxpayer money by government agencies, which includes state schools.

If that doesn't make your blood boil . . .

Sounds like the Virginia legislature needs to get working on a special bill called Government Fraud Against Taxpayers Act. Oh my. Can you imagine the scope of the thing?

Don't waste your time reading the liberal press about this one.

The Virginia Supreme Court issued a decision in the case in which Virginia Attorney General Ken Cuccinelli sought emails from the University of Virginia about Michael Mann's "hockey stick" graph, made famous by the Climategate fiasco.

Cuccinelli issued a subpoena under the Fraud Against Taxpayers Act (FATA), which authorizes investigations of suspected fraud to obtain taxpayer money. The court ruled that Cuccinelli could not get the emails. But the decision was not about academic freedom or anything like it, although the liberal press would like you to believe that it was.

In fact, the decision highlights one of the many ways that government is allowed to break the law.

FATA allows the Attorney General to investigate suspected fraud used to obtain state funds. The Attorney General may issue a civil investigation demand, which is essentially a subpoena, to any "person" suspected of using fraud to obtain state funds. Any "person" includes any corporation.

The University of Virginia is incorporated. However, it is a state school, and the Virginia Supreme Court therefore deemed it to be a state agency based on Virginia precedent.

Citing a line of cases giving state agencies preferential treatment compared to "persons," the court ruled that a state agency is not a "person" subject to FATA investigations. The court ruled against Cuccinelli's subpoena for that reason, and that reason alone.

So, while Mr. Cuccinelli would be free to investigate fraudulent acquisition of taxpayer money by individuals or private corporations under FATA, he is not free to investigate fraudulent acquisition of taxpayer money by government agencies, which includes state schools.

If that doesn't make your blood boil . . .

Sounds like the Virginia legislature needs to get working on a special bill called Government Fraud Against Taxpayers Act. Oh my. Can you imagine the scope of the thing?