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U.Va. says Cuccinelli subpoena a sweeping demand that will imperil academia

Rosalind Helderman

The University of Virginia told a court today that Attorney General Ken Cuccinelli's request for information about a former university scientist is so sweeping that it bears no relevance to an investigation of whether the scientist violated a Virginia fraud statute Cuccinelli used to issue the demand.

Instead, they accuse Cuccinelli of pursuing an ideological assault on the scientist's conclusion that the earth is warming, one they say will chill academic research.

In a brief supporting a petition asking that judge to set aside Cuccinelli's civil investigative demand, lawyers for the university note that Cuccinelli has sought information about five grants that were issued to Michael Mann, a climate scientist who has researched global warming.

But four were grants Mann received from the federal government, which the university's lawyers say mean they are not covered by the Virginia Fraud Against Taxpayers Act, the statute Cuccinelli used to issue the civil subpoena. Mann, who now works at Penn State University, received the fifth grant before the statute was enacted in 2003, they write.

Much of the information Cuccinelli seeks bears no direct connection to any of the five grants, they contend, including e-mails between Mann and 39 other scientists sent from 1999 to the present. The information Cuccinelli seeks is "not even remotely tailored to an investigation of a potential [fraud statute] investigation," they write.

Cuccinelli has said his fraud suspicion is linked to e-mails that were leaked from a British university in which scientists discussed a "statistical trick" used by Mann in the course of his research. Mann and others have said the email was taken out of context. The university's lawyers point to several previous investigations of those e-mails that concluded that Mann did not commit fraud. It looks increasingly probable that the Albemarle Circuit Court Judge will be tasked with sorting through the claims and counterclaims about global warming research.

The university's lawyers -- who hail from a big D.C. firm and were engaged after Cuccinelli gave the school leave to hire outside counsel on the issue -- say the judge should set Cuccinelli's civil subpoena aside because the fraud statute cannot be used against a state agency such as a university. Plus, they say Cuccinelli's demand does not describe the "nature of the conduct" that Cuccinelli believed might have been fraud, as required by the law.

Cuccinelli has filed a short answer to the university's claims. He will file a full brief defending his subpoena July 13, and the judge will hear oral arguments on the issue in August.

By Rosalind Helderman  |  June 29, 2010; 3:04 PM ET
Categories:  Ken Cuccinelli , Rosalind Helderman  
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The problem is not that Cuccinelli should not investigate actual fraud. No one can dispute that. The problem is, there is no doubt at all this "investigation" is politically motivated. For one thing, the fact that the professor left UVa long ago means that there is no possibility of any ongoing wrongdoing, and for another, the fact that the Feds paid out most of the money involved means it does not come under the Virgina AG's purview. Clearly this is not a law enforcement action.
Cuccinelli wants to get emails to other scientists, take them out of context, and then trash the entire contention that man is causing global warming. I am glad UVa decided to resist, and hope they win.

Posted by: boatbrain | June 29, 2010 4:57 PM | Report abuse

Does Cuccinelli think "the state of Virginia should still be allowed to prohibit interracial marriage"? See

Posted by: imback | June 30, 2010 6:35 PM | Report abuse

Why is UVa threatening legal action to prevent an audit? What have they to fear? If their work is sound, they can defend it in court at least as well as it has been promoted in the press. Legal standards of 'proof' are much lower than those used by empirical scientists. A court victory over what would be perceived as a political attack would only strengthen their case. OTOH, a loss would be perceived as evidence of fraud at the roots of the global warming 'consensus' community. UVa must not be very confident in their case. Never mind, I think I just answered my own question.

Posted by: tadchem | July 1, 2010 1:55 PM | Report abuse

14. Hence the skillful fighter puts himself into a position which makes defeat impossible, and does not miss the moment for defeating the enemy.

15. Thus it is that in war the victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterwards looks for victory.

-Sun Tzu, "The Art fo War", Ch. IV

Posted by: tadchem | July 1, 2010 2:08 PM | Report abuse

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