UVa lawyers: Investigation by Cuccinelli 'unlawful'

Lawyers for the University of Virginia on Tuesday denounced an investigation by Attorney General Ken Cuccinelli into a former climate change scientist as “unlawful” and an “impermissible intrusion on academic and scientific speech and research.”

Cuccinelli, a Republican and prominent climate change skeptic, is seeking to subpoena a trove of documents, correspondence and data related to the research activities of former UVa climatology scientist and global warming expert Michael Mann.

Cuccinelli has said he is investigating the possibility that Mann defrauded Virginia taxpayers when he sought four federal research grants and one state grant totaling $466,000 while working at UVa between 1999 and 2005.

Mann became a target of Cuccinelli’s probe after the so-called “climategate” scandal, in which thousands of e-mails by climate change researchers — including Mann — were leaked from the Climatic Research Unit of the University of East Anglia in Great Britain and posted on the Internet. Critics claim the e-mails are evidence that the climate science community manipulated climate change data.

UVa is fighting Cuccinelli’s demands in Albemarle County Circuit Court. A new 28-page filing on Tuesday lays out in detail the university’s argument that Cuccinelli’s subpoenas should be set aside. UVa’s lawyers also submitted 348 pages of evidence to support its arguments.

The university’s lawyers argue that Cuccinelli’s subpoenas — which are known as civil investigative demands, or CIDs — are not enforceable under Virginia law. First, the lawyers say, the law requires the attorney general to state “the nature of the conduct constituting the alleged violation” and must have “reason to believe” that the CID recipient has information about a violation of Virginia’s anti-fraud law.

“Neither statutory requirement is met here,” UVa’s lawyers wrote.

Moreover, they say, four of Mann’s grants were from the federal government and therefore not covered under Virginia’s Fraud Against Taxpayers Act. The fifth grant, funded by the university, was awarded to Mann in 2001 — two years before the anti-fraud law went into effect.

UVa also argues that complying with Cuccinelli’s demands would be “unduly burdensome.”

“Compliance would require the university to expend substantial effort at the commonwealth’s expense to identify, collect, review and produce all the information requested,” UVa’s lawyers wrote. “It would be a colossal undertaking for the university to identify e-mail, correspondence, research and other documents and information relating to a former faculty member’s work at the university spanning a period of more than ten years and encompassing dozens of other university professors and employees.”

Furthermore, the university’s lawyers argue that complying with Cuccinelli’s subpoena would “infringe academic freedom and chill scientific debate.”

“The CIDs challenge Dr. Mann’s academic work, including the substance of his research and conclusions on climate science,” UVa’s lawyers write. “The chilling effect of enforcing the CIDs at issue can hardly be overstated and cannot be ignored.”

Cuccinelli has stated repeatedly that his investigation is solely about rooting out fraud and has nothing to do with academic freedom.

At an appearance Friday in Lynchburg, Cuccinelli said his office is “looking at whether taxpayer dollars were used at a state institution for what the taxpayers were told that money would be used for, or was it used for another purpose,” according to the News & Advance.

Cuccinelli said he is not assuming fraud occurred on the part of Mann, but “there is public information that indicates there may be a problem.”

A court filing earlier this month by Cuccinelli’s office cited “climategate” as a reason to look at Mann for possible violations of Virginia’s anti-fraud law.

“According to various reviews of the materials, various statements or methods have been attributed to Dr. Mann including the fact that he developed a ‘trick’ in order to ‘hide the decline’ and that he indicated to a research colleague in England that ‘[a]s we all know, this isn’t about the truth at all, it’s about plausibly deniable accusations,’” wrote Deputy Attorney General Wesley G. Russell Jr. “Respondent admits that, much like the FATA investigation at issue here, governmental bodies in England felt the revelations warranted a governmental investigation.”

UVa’s lawyers, however, point out that multiple investigations in England and the United States have not found evidence of manipulation or falsification of data within the “climategate” e-mail exchanges.

Mann, meanwhile, was investigated by Penn State, where he now works. The investigation cleared Mann of wrongdoing in three of four allegations against his research. The probe suggested that a separate panel investigate the fourth allegation.