Cuccinelli: Academic freedom won't shield scientist from fraud probe

Attorney General Ken Cuccinelli argued Tuesday that the University of Virginia must comply with his demand for a trove of documents related to the research of former UVa climate change scientist Michael Mann, saying that Mann’s academic freedom does not shield him from Cuccinelli’s probe into possible fraud.

Cuccinelli, a Republican and global warming skeptic, has been attempting to subpoena the documents to investigate whether Mann violated Virginia’s Fraud Against Taxpayers Act when he received four federal and one state research grants totaling $466,000 while employed by UVa between 1999 and 2005.

UVa, for its part, is challenging Cuccinelli’s civil investigative demands, which carry the legal force of subpoenas in Albemarle County Circuit Court, arguing that compliance with the demands would infringe upon academic freedom and would have a chilling effect on all Virginia scientists conducting research into controversial subjects.

Moreover, UVa’s lawyers say, Cuccinelli’s subpoenas fail to meet statutory requirements and would be unduly burdensome on the university.

Cuccinelli’s office filed a 41-page brief Tuesday that urges an Albemarle County judge to ignore UVa’s petition to throw out Cuccinelli’s subpoenas and to order UVa to hand over the requested documents, e-mails, data and more.

“ … It is clear that there is ample reason to believe that Mann may have committed a violation of FATA while he was at the university,” the filing says. “There is no debate that the university is in possession of documents relevant to determining if such a violation did occur. Accordingly, and for the reasons that follow, the court should deny the university’s petition.”

A sizable section of Cuccinelli’s latest filing questions the integrity of the scientific research behind climate change. The filing spends many pages disputing studies authored by Mann and his colleagues and goes on to suggest that a few dozen leading climate change scientists, including Mann, may have wanted to make global warming appear as a major threat to protect their research funding.

“Not only are they few in number, but through connections with Mann, they formed a mutually supporting and reinforcing group; peer reviewing and co-authoring each other’s papers,” the filing says. “ … Because neither the [Intergovernmental Panel on Climate Change] nor governmental grants to climate scientists would likely continue were it to be determined that man-made global warming was not a serious threat, potential conflicts of interest flow predominantly in one direction.”

Cuccinelli launched his investigation into Mann after e-mails were either hacked or leaked from the Climatic Research Unit at the University of East Anglia in Great Britain. Critics believe the so-called Climategate e-mails, including some from Mann, indicate that the world’s leading climate change scientists were conspiring to manipulate climate change data. Numerous independent investigations, however, have cleared the scientists – including Mann – of scientific wrongdoing.

Aaron Huertas, spokesman for the Union of Concerned Scientists, said Cuccinelli’s investigation into Mann is baseless and unnecessary.

“Mike Mann has had his name dragged through the mud for years,” Huertas said. “Every time someone looks into him, he comes back perfectly clean.”

Huertas said it is preposterous to believe that climate change is the result of a conspiracy by scientists such as Mann. “That’s the same type of thinking we see from people who don’t believe we landed on the moon,” he said.

Cuccinelli’s new court filing addresses the multiple investigations that have cleared Mann and the other Climategate scientists, arguing that they actually support the need for his investigation.

“Ironically, the various investigations of Mann and other climate scientists cited by the university in its brief and various other similar investigations simply augment the already sufficient evidence to warrant an investigation,” the filing says. “It is truly the university’s position that none of those investigations were warranted and all of the groups cited acted without any reasonable basis in fact? If not, the very existence of those investigations reinforces the conclusion that there is sufficient basis for the attorney general to have issued the CIDs in the instant case. That some of the investigations cited have been completed and have allegedly ‘cleared’ Mann does not alter the analysis.”

UVa’s lawyers have argued that Cuccinelli failed to show, as required by law, “the nature of the conduct constituting the alleged violation” and a “reason to believe” that UVa has information related to a possible violation of Virginia’s anti-fraud statute.

Cuccinelli’s latest filing says UVa’s lawyers misunderstand the law and says the subpoenas are essentially the proper first step to determine if any violations of the law occurred.

Cuccinelli’s filing also pooh-poohs UVa’s argument that it cannot comply with the investigation because it would hinder academic freedom and have a chilling effect on science.

“In dealing with any claim of academic freedom, it must be remembered that the doctrine, to the extent it applies, only arises out of the First Amendment, a point the university concedes. … Thus, by definition, it offers no protections for things that fall outside of the protections of the First Amendment – such as fraud and fraud investigations,” the filing says.

UVa’s lawyers have also argued that Cuccinelli has no authority to investigate Mann’s research grants because four were from the federal government and consequently not subject to Virginia’s anti-fraud law. The fifth grant, which was funded by UVa, was awarded to Mann in 2001 – two years prior to the enactment of Virginia’s anti-fraud law.

Cuccinelli’s filing says there is reason to believe that UVa may have had a hand in administering the four federal grants. The UVa-funded grant, it adds, may be still be subject to Virginia’s anti-fraud law because it may have still been allocating payments after Jan. 1, 2003, when the law went into effect.

UVa’s lawyers are expected to file their response to Cuccinelli’s latest brief next Tuesday.