Search Results for ‘cei subpoena’

More on the CEI subpoena

As we noted on Friday, New York Attorney General Eric Schneiderman, more recently joined by several other state attorneys general, has pursued an investigation of the ExxonMobil corporation and its links to “climate denial” that has now resulted in a subpoena (from the attorney general of the U. S. Virgin Islands, Claude E. Walker) demanding ten years’ worth of internal documents from the Competitive Enterprise Institute. CEI, which issued a statement last week (with the text of the subpoena) vowing to resist the legal attack, has a further statement and links here; CEI’s Myron Ebell also recorded a Cato podcast (“fishing expedition… threatens our future… designed to shut us up”) with interviewer Caleb Brown.

Megan McArdle, Bloomberg View, calls the new developments “an attempt to criminalize advocacy”:

State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.”

New York Attorney General Eric Schneiderman gave the game away when he explained that they would be pursuing completely different theories in different jurisdictions — some under pension laws, some consumer protection, some securities fraud. It is traditional, when a crime has actually been committed, to first establish that a crime has occurred, and then identify a perpetrator. When prosecutors start running that process backwards, it’s a pretty good sign that you’re looking at prosecutorial power run amok….

The rule of law, and our norms about free speech, represent a sort of truce between both sides. We all agree to let other people talk, because we don’t want to live in a world where we ourselves are not free to speak. Because we do not want to be silenced by an ambitious prosecutor, we should all be vigilant when ambitious prosecutors try to silence anyone else.

Hans von Spakovsky, Heritage Foundation:

This investigation is intended to silence and chill any opposition. It is disgraceful and contemptible behavior by public officials who are willing to exploit their power to achieve ideological ends….

Given the coalition that has been formed by state attorneys general to conduct a grand inquisition against climate change deniers, this subpoena from the Virgin Islands attorney general is probably just the first assault in their quasi-religious war against unbelievers. Researchers, scientists, think tanks, universities, and anyone else who works or speaks in this area should be aware that they may soon become a target of these malicious investigations.

Hans Bader of CEI, at Law and Liberty:

As the Washington state supreme court noted in Rickert v. State Pub. Disclosure Commission (2007), our forefathers “did not trust any government to separate the true from the false for us” in the realm of politics.

A sobering aspect of the state AGs’ crusade is what is taking place outside of courtrooms: they are pressuring companies to cut off donations to nonprofit groups that employ “climate-change deniers.” … New York’s and California’s attorneys general have investigated Exxon for making donations to think tanks like the American Enterprise Institute and lobbying groups like the American Legislative Exchange Council. Schneiderman complains that these two specifically are “even more aggressive climate change deniers” than the run of the mill. (Ironically, while these large organizations include a few people labeled as “climate change deniers,” they focus mostly on issues having nothing to do with climate change.)

…even if being a “climate change denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a nonprofit that employs such a person would not be a crime.

In February we noted Bader’s strong argument that a “prolonged investigation in response to someone’s speech can violate the First Amendment” in itself even when “eventually dropped without imposing any fine or disciplinary action.”

I’m also quoted in a piece in Vermont Watchdog by Michael Bielawski and Bruce Parker that came out just before the subpoena report, on some of the issues in the investigation.

CEI subpoenaed over climate wrongthink

The campaign to attach legal consequences to supposed “climate denial” has now crossed a fateful line:

The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore….

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

CEI General Counsel Sam Kazman said the group “will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association.” More coverage of the subpoena at the Washington Times and Daily Caller.

A few observations:

  • If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) groups conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. Like yours.
  • This article in the Observer details the current push to expand the probe of climate advocacy, which first enlisted New York AG Eric Schneiderman and then California’s Kamala Harris, into a broader coalition of AGs, with Massachusetts and the Virgin Islands just having signed on. More than a dozen others, such as Maryland Attorney General Brian Frosh, seem to be signaling support but have not formally jumped in. More: Peggy Little, Federalist Society.
  • CEI people, many of them longtime friends of this site, have been active critics of the Schneiderman effort, with Hans Bader, a senior attorney there, highly critical just a week ago.
  • In these working groups of attorneys general, legal efforts are commonly parceled out among the states in a deliberate and strategic way, with particular tasks being assigned to AGs who have comparative advantage in some respect (such as an unusually favorable state law to work with, or superior staff expertise or media access). Why would one of the most politically sensitive tasks of all — opening up a legal attack against CEI, a long-established nonprofit well known in Washington and in libertarian and conservative ideological circles — be assigned to the AG from a tiny and remote jurisdiction? Is it that a subpoena coming from the Virgin Islands is logistically inconvenient to fight in some way, or that local counsel capable of standing up to this AG are scarce on the ground there, or that a politician in the Caribbean is less exposed to political backlash from CEI’s friends and fans than one in a major media center? Or what?
  • I recommend checking out the new Free Speech and Science Project, which intends to fight back against criminalization of advocacy by, among other things, organizing legal defense and seeking to hold officials accountable for misusing the law to attack advocacy.
  • This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I note in a new piece at Cato, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.

[cross-posted at Cato at Liberty and reprinted at FEE; see also new Cato podcast with CEI’s Myron Ebell (“fishing expedition… threatens our future… designed to shut us up.”)]

Un-forthcoming Schneiderman loses another round to CEI

A New York appellate court has upheld an order that New York Attorney General Eric Schneiderman pay counsel fees to the Competitive Enterprise Institute for having resisted required disclosure of the “AGs United for Clean Energy” secrecy agreement [Anna St. John, CEI; Chris White, Daily Caller]

Attorneys general began tangling with CEI in April of 2016, and have experienced repeated setbacks in courtroom battles since then.

Climate advocacy subpoenas, III

  • “…the open, naked promise to use prosecutorial powers as a political weapon is a prima facie abuse of office. In a self-respecting society, every one of those state attorneys general would have been impeached the next day.” [National Review editorial]
  • Lefty foundations funded investigative report that kicked off the prosecute-climate-deniers push, and even funded the group that then gave an award to that ostensibly independent report [Jon Henke, earlier on Columbia School of Journalism role here and here; Jillian Kay Melchior on Inside Climate News]
  • Grand public announcement by attorneys general and former Vice President Al Gore made no mention of huddles with Rockefeller philanthropies that led up to it [Reuters; summaries of conversations via pro-CEI public records request]
  • Major angle not yet widely publicized is that ALEC, hugely demonized on Left, likely to be in cross hairs: “In his remarks, Maryland Attorney General Brian Frosh made a point of adding … [the] American Legislative Exchange Council as potential targets.” [Climate Investigations]
  • What’s private class action law firm Cohen Milstein doing in the middle of all this? Three guesses [National Review editorial; note “place of production” commanded in subpoena text]
  • “Climate Investigations” website seeks to promote idea of giving private lawyers what could prove wildly lucrative contingent-fee role in crusade against climate deniers; note that such private lawyers not only drove tobacco Medicaid recoupment litigation from the start, but (a tale told in Chapter 1 of my book The Rule of Lawyers) helped shape the epic corruption of that tobacco caper;
  • Reactions by the targets: a statement from incoming CEI president Kent Lassman vows to fight; “Exxon Fires Back at Climate-Change Probe” [WSJ; AP/U.S. News via Virgin Islands Free Press on move to quash subpoena]
  • “Federal law makes it a felony ‘for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).'” It doesn’t exempt state attorneys general [Glenn Reynolds, USA Today]

Earlier generally here and specifically on the subpoena of the Competitive Enterprise Institute here and here.

Are the climate-speech subpoenas constitutional?

New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:

A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.

In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.

Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:

These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.

Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.

An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.

Previously on the probe here and here (and earlier here and here), and on the New York attorney general’s office here and here.

[cross-posted from Cato at Liberty]

Eleventh Circuit slaps down overly broad EEOC subpoena

After receiving a complaint of health-status discrimination from a Royal Caribbean Cruise Lines employee, followed by a response from the company saying that the employee was a foreign national working on a foreign-flagged ship and therefore not subject to EEOC authority, the agency launched a massive fishing expedition:

(1) List all employees who were discharged or whose contracts were not renewed [from August 25, 2009, through the present] due to a medical reason.
(2) For each employee listed in response to request number 1, include the employee’s name, citizenship, employment contract, position title, reason for and date of discharge, a copy of the separation notice and the last known contact information for each individual.
(3) For each employee listed in response to request number 1, include their employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee obtained the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
(4) List all the persons who applied for a position but were not hired within the relevant period due to a medical reason
(5) For each person listed in response to request number 4, include their citizenship, employment application and related correspondence, any interview notes, the identity of the person [who] hired the employee, how the employee learned of the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.

The cruise line complied in (massive) part, but not fully, “providing records for employees and applicants who were United States citizens” but not others. The agency took the dispute to court and proceeded to lose at every stage, the Eleventh Circuit being the latest to find its information demands burdensome and irrelevant: “The relevance necessary to support a subpoena for the investigation of an individual charge is relevance to the contested issues that must be decided to resolve the charge, not relevance to issues that may be contested when and if future charges are brought by others.” [Hunton and Williams; Phelps Dunbar]

Meanwhile, the commission has issued its fiscal 2014 performance report; in explaining a drop in resolved complaints, its public statement cites the “lingering effects of sequestration and the government shutdown” but not the marked skepticism that judges repeatedly showed toward EEOC positions through the year.

“Subpoenas Target Rocker, Actress as Experts on Alienation”

An already odd binge of litigation has gotten yet odder: the California man who has sued Sony for kicking him off its PlayStation online network, and has sued Nintendo and Microsoft on other grounds, is now suing Activision Blizzard, publisher of the immensely popular online game World of Warcraft, which he accuses of maintaining a “harmful virtual environment” with “sneaky and deceitful practices.” He alleges that use of the game tends to bring on mental health problems, and — the best bit — says he intends to subpoena lyricist Martin Gore of the band Depeche Mode and Hollywood actress Winona Ryder as third party experts on alienation. [GameSpot via Ambrogi/Legal Blog Watch; earlier] Update: Estavillo is subpoenaing Bill Gates too [Seattle PI Microsoft blog]

“Hacking-by-subpoena ruled illegal”

Fishing expeditionists, proceed at your own risk: “Issuing an egregiously overbroad subpoena for stored e-mail qualifies as a computer intrusion in violation of anti-hacking laws, a federal appeals court ruled Thursday, deciding a case in which a litigant in a civil matter subpoenaed every single piece of e-mail his courtroom adversary sent or received.” Judge Alex Kozinski of the Ninth Circuit wrote the opinion in the case, in which commercial litigant Alwyn Farey-Jones via his attorney, Iryna Kwasny, demanded emails from his opponent, a company named Integrated Capital Associates. (Kevin Poulsen, Security Focus, Aug. 29; opinion (PDF) courtesy IP Watchdog). The Federal Rules of Civil Procedure “impose on parties seeking discovery an obligation to ensure that their requests do not impose an ‘undue burden or expense.'” (Jeff Cooper, Aug. 29).

More: At Security Focus, Mark Rasch writes: “This decision, while motivated by a legitimate desire to protect privacy and force lawyers to obey the rules, nevertheless dramatically expands the meaning and intent of the computer crime in a way that could permit hundreds of thousands of people to be prosecuted” for such instances of “unauthorized use” or “trespass” as sending unauthorized emails or putting at-work computers to personal use. “Let’s get real. What the lawyers did was issue an overbroad subpoena. … The defendants in this case did not break into any computers — and saying that they did is bad for those who value liberty and prosecutorial restraint.” (“Forgive Me My Trespasses”, Sept. 8).

Read On…

September 28 roundup

  • Today at Cato, Josh Blackman discusses his new book Unraveled: Obamacare, Religious Liberty, and Executive Power with comments from Washington Post Supreme Court reporter Robert Barnes and Philip Klein of the Washington Examiner, Ilya Shapiro moderating [watch live 12 noon Eastern]
  • Breed-specific laws fuel mass euthanasia: “Montreal Gearing Up To Sentence Huge Numbers Of Innocent Dogs To Death” [Huffington Post]
  • Feds prepare to mandate mechanical speed governors capping road speed of tractor-trailers; truckers warn of crashes and traffic jams [AP/San Luis Obispo Tribune]
  • “You have to go back to the Red Scare to find something similar,” said Rep. Eddie Bernice Johnson (D-Texas) of advocacy-group subpoenas by Hill committee in “Exxon Knew” probe. Or just five months to the CEI subpoena [Washington Post hearing coverage which oddly omits mention of CEI episode]
  • “I’m not here to take away your guns.” Why Hillary Clinton’s assurances ring hollow [Jacob Sullum] Trump’s comments defending stop-and-frisk and no-fly no-buy further undercut his never-impressive claims as defender of gun liberty [AllahPundit, Leon Wolf, Ilya Somin]
  • Why my Cato colleagues believe the Trans-Pacific Trade Partnership (TPP) is worth supporting as a trade liberalization measure despite some suboptimal aspects [Daniel J. Ikenson, Simon Lester, Scott Lincicome, Daniel R. Pearson, K. William Watson, Cato Trade]

State AGs for hire on environmental activism

My new Cato post looks at a low-profile program in which a nonprofit backed by former New York City Mayor Michael Bloomberg places lawyers in state attorney generals’ offices, paying their keep, on the condition that they pursue environmental causes. We know much about this and other AG entanglements thanks to two reports by Chris Horner of the Competitive Enterprise Institute (CEI) based on public records requests that had been strenuously resisted by the state AGs. (CEI was itself the target of a notorious subpoena engineered by AG offices.) The New York Post also takes a critical view of the program.