Sunday, September 05, 2010

Denialist Attorney General shot down in Round 1

Virginia's Attorney General Cuccinelli attempted to investigate Michael Mann for fraud because Cuccinelli (let's call him Cooch) didn't like Mann's views on climate change, but that's hit a road block. A judge thinks the investigatory demand should spell out what the fraud was before Cooch can legally require the University of Virginia to open all of Mann's computer files to Cooch investigators. From the opinion (p. 3-4):

In order for the Attorney General to have "reason to believe" [that fraud may have occurred], he has to have some objective basis to issue a civil investigative demand, which the Court has power to review.
What the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth [of Virginia] is simply not stated....

Cooch really has two problems here: first, he couldn't figure out how to say "I think Mann may have intentionally misrepresented data in order to show compliance with grant funding that he had received." That's the first-year law student mistake which has received deserved ridicule.

Second and more important IMHO is that Cooch needs an "objective basis" for suspecting fraud: a little thing called "evidence." Absent that, Cooch is just doing a little thing called "witch hunting." Restating the demand to actually suspect a fraud also requires a reason to suspect fraud, and the judge could decide if the reason is ridiculous.

There's more to the opinion, mostly against Cooch, a little in support of him. The University's lawyers went for the approach of "try any argument that could potentially win" instead of limiting to a few arguments that show Cooch was making frivolous claims, so Cooch did win a few of the subsidiary battles while losing this round. My guess then is that this judge wouldn't sanction the Attorney General for making a frivolous demand, unfortunately.

Unless he's foolhardy, Cooch won't revise his demand or appeal. OTOH, maybe he thinks there are more judges in Virginia whose understanding of the law matches his own.

1 comment:

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