Cuccinelli Witch Project

So, you didn’t think the opposition to global warming was political?  You thought “skeptics” were just out to make a scientific case?

Virginia Attorney General Ken Cuccinelli - campaign photo

Virginia Attorney General Ken Cuccinelli - campaign photo

As the Hook explains, Virginia Attorney General Ken Cuccinelli has ordered the University of Virginia to turn over all records they have of research done by Michael Mann while he was at the UVA (he left five years ago for Penn State). (Civil Investigative Demand, here)

It’s a fishing expedition, the very definition of a witch hunt.  Also, as I read the Virginia Fraud Against Taxpayers Act upon which Cuccinelli bases his actions [see comments — better source here], it’s probably outside the statute of limitations.

Research that Cuccinelli has targeted to investigate  includes work Mann did with the National Oceanographic and Atmospheric Administration (NOAA) and the National Science Foundation (NSF).  Cuccinelli probably lacks jurisdiction for much of the stuff he wants, trumped by those federal agencies.

Mann is the guy who put together the chart of all the different threads of research that show warming climate, commonly known as the “hockey stick” after Al Gore’s years of presentations on the chart and the movie, “Inconvenient Truths.”  Mann also is among those scientists in U.S. and England whose private e-mails were exposed in the breach of the e-mail servers at England’s Hadley Climate Research Unit.

Three different investigations have put Mann in the clear so far (Penn State’s .pdf of investigation results; response to Texas U.S. Rep. Joe Barton’s assault) — odd that stolen e-mails would produce doubts about the victims of the theft, but ethical standards in science research are indeed that high.  Caesar’s wife couldn’t be considered for research grants.

Why do I think the statute of limitations may apply?  Look at the law, linked above, the Fraud Against Taxpayers Act:

§ 8.01-216.9. Procedure; statute of limitations.

A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the Commonwealth.

A civil action under § 8.01-216.4 or 8.01-216.5 may not be brought (i) more than six years after the date on which the violation is committed or (ii) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.

In any action brought under § 8.01-216.5, the Commonwealth shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

Research at a major research institution like a big, public university involves many layers of regulation and bureaucratic checking.  Generally the university’s research office will require adherence to the school’s ethical code and all state laws up front, and then the auditors check the money flow and research activities through the project.  There is a final sign off at most schools, which would qualify as “the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances.”

Cuccinelli is sending a clear signal to researchers that they are unwelcome in Virginia if their research doesn’t square with his politics — and his politics are weird. Watch to see what the response of the University is, especially if their delivery of documents doesn’t put this witch hunt to bed.

[Update notice:  The text of the law noting the statute of limitations was updated on May 5, to show application to § 801-216.4 as well as § 801-216.5]

Other sources to check:

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23 Responses to Cuccinelli Witch Project

  1. […] and Houston in Texas, and Washington, D.C., and New York, would also be poring over the piece.  Ken Cuccinelli in Virginia would also be paying attention to it, if he were concerned about […]


  2. […] as suggested earlier here, the judge noted that Cuccinelli’s authority did not extend to four of the five grants […]


  3. […] in his state (and probably all states) and a climate science heretic, must wait to get the information he asks of the University of Virginia and its association with super-researcher Michael … at least until a hearing August 20 on whether Cuccinelli is trying to act bigger than his breeches […]


  4. John Mashey says:

    BTW, as usual, “follow the money” is useful, see Cuccinelli funding, by industry.


  5. John Mashey says:

    Washington Post has been a bit flakey on climate of late, but their editorial today was fine.


  6. Ed Darrell says:

    John, did you mean “Wegman report infamy?”

    The evidence just piles up that this is a witch hunt, eh? Cuccinelli doesn’t appear to be concerned that his actions today open the door for his successor to chase down his old political comrades-in-denial at George Mason.

    Those who don’t know history, etc., etc. Goes double for those who don’t think about precedents they set.

    It was forecast to be near 90 degrees here in Dallas today. But we can feel the chill from Virginia.


  7. John Mashey says:

    A useful fact to know is that both Cuccinelli and his deputy AG for civil litigation got their JD’s at George Mason University, which has interesting funding (Koch, Scaife, et al), and various odd climate anti-science connections. Fred Singer used to be there, Pat Michaels is teaching there this summer, etc. Edward Wegman (of Wegman Reprot fame) is there.


  8. Nick K says:

    Can someone point to the probable cause that makes the AG think “fraud” was committed?

    Or is it just generally agreed that the AG is continuing to be a stupid idiot?


  9. […] it appears that the statute of limitations may have run […]


  10. Thanks for the updated reference, Ed – the specific statute of lims for this action overrules any general statute of lims, so I’m confident you’ve got the right one to work with.


    1. Any “fraud” violation committed by Mann in 2004-2005 would still be within the 6 year limit.

    2. I think the official “with responsibility to act” means the Attorney General, not the officials supervising Mann, so that limit hasn’t been reached either.

    Agreed that mistake is not fraud – that’s been settled for hundreds of years.

    I’ve been pondering whether a section 1983 suit of free speech infringement could be brought. I think UVa has a chance, but am less sure about Mann bringing one on his own.


  11. […] up stuff on the internet Here’s the Dilbert cartoon Virginia Attorney General Ken Cuccinelli should have viewed before he went […]


  12. Ed Darrell says:

    Brian, the more official version of the law, at a Virginia website, notes the SOF applies to the AG’s investigations under 801-216.4, also (my apologies for not linking there in the first place):

    A civil action under § 8.01-216.4 or 8.01-216.5 may not be brought (i) more than six years after the date on which the violation is committed or (ii) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.

    I also find the entire statute a bit vague in several respects with relation to what is alleged, and what I think Cuccinelli is pursuing. In general, such fraud statues, including the qui tam provisions, target garden-variety fraud, such as the filing of expense reports, billings for equipment purchases, and so forth. With respect to these rather small-potatoes grants from Virginia in support of federal research, it’s unclear to me how there could have been significant fraud in any of these areas. None of the grants is so large as to make it rational for a scientist working in science to bother to create a fraud, and simple error in accounting appears, to me, to be excused under the law.

    Cuccinelli has a political agenda, witnessed by his challenge to EPA’s regulation of pollutants. His actions in this case appear to be motivated by his political agenda, to contest the science behind global warming claims, rather than to contest the actual administration of the grants. In his drive to pursue the political agenda, I don’t think he’s carefully read the statute, nor do I think he’s within the bounds of his oath of office.

    I was also unsuccessful in searching to find other SOF limitations that would apply under Virginia law, largely because I don’t have the time to chase it down. I’m relatively certain common law or statutory SOF apply to this investigation apart from this specific provision, but I’m not sure it’s worth running it down and parsing it out.

    Virginia has several state institutions trying to make reputations in research in various areas, including UVa, Virginia Tech, George Mason U and James Madison U. Assume you’re a Nobel-competitive economist looking for a new academic home, and your choices include Chicago, Stanford, University of Texas (any branch), Penn State and a couple of Ivy League schools. Add to your decision matrix the fact that the Virginia AG is looking to contest the results of some research through CIDs. Do you want the hassle?

    Suppose you’re the head of NOAA and you have to advise the Secretary of Defense on security implications of climate change. Do you want the Virginia AG combing through either the expense reports of your contractors in Virginia, or, especially, their research results?


  13. § 8.01-216.5 is for private civil actions, not one undertaken by the AG, so that statute of limitations doesn’t apply here. I’d guess that Virginia might have another, general statute of limitations, but I don’t really know for sure.


  14. […] Cuccinelli Witch Project « Millard Fillmore’s Bathtub […]


  15. Skip Smith says:

    >>”This is not the university’s first brush with the political sensitivities of the climate change issue. In 2006, then-Gov. Timothy M. Kaine (D) asked that former Virginia state climatologist and university professor Patrick J. Michaels make clear that he was not speaking on behalf of the state when he publicly offered skepticism about global warming.”<<


  16. Ed Darrell says:

    CEI suing NASA?

    Having been the FOIA officer for an agency, having been sued (unsuccessfully) for access, and having spent a decade leaking and releasing documents, it is my considered opinion that anyone who can’t get the information backing up a published paper, from a federal agency, has been playing with the home self-lobotomy kit way too long.

    All that information is freely available for a phone call. In NASA’s case, most of it is posted on the web. Got that name of that case? Is it still alive? Maybe I should file an amicus brief noting that it would be difficulty for such a suit to be anything other than a nuisance suit.

    When I staffed Congress I used to get angry phone calls from people regularly, asking where they had to file an FOIA request to get some information out of a committee. I loved hearing the explosion at the other end of the line when I told them they couldn’t, that Congress was exempt. If they were sincerely seeking information, I’d help them find it. That was my job, to get all that “secret” stuff out into the public’s hands. Often they wouldn’t know what to ask for, so we’d have to help them.

    At the President’s Commission on Americans Outdoors we got sued for FOIA and violations of the Administrative Procedures Act on notices of meetings and hearings. The case got summary judgment in our favor when I produced the mailing list that included each of the plaintiffs on it, and I was able to produce the list of mailings they got over and above the Federal Register — and the sign-in sheets from the hearings they claimed not to have gotten notice on, where they offered testimony (and press releases). The judge was amused, I think.

    At Education we developed a process of passing around the FOIA phone calls two or three times, just to calm the caller down, and then we’d ask them what they wanted, and mail it to them for free. FOIA required us to wait about 30 days, fill out all sorts of papers, and charge about $1 a page for copies. But our agency’s job was to pass the information out for free. We had a guy on a toll-free number whose job was to track down the information and get it, so there wouldn’t be any FOIA request. Still, we got a score of FOIA requests every month. We eventually took to copying down the addresses and mailing the information to the people anonymously (as anonymous as you can be with an executive branch frank, anyway).

    Often, people wouldn’t believe they’d gotten all the information, even after they’d read it. Surely there “must be” something more, something secret, something sinister.

    What is it CEI claims not to know? I’ll wager they claim to be experts in it, when they talk.


  17. Eli Rabett says:

    CEI threatened to sue NASA under FOI to release stuff that Gavin may or may not have been involved in. It got stupid fast. They were asking essentially for the entire NASA Email archive on all FOI requests


  18. Ed Darrell says:

    Mann is a charlatan and a crook who has been one of the perpetrators who has stolen countless billions from taxpayers.

    That would be humorous were it not so vicious, bubbagyro. Add up the totals for Mann’s work at Virginia — under $500,000 that Cuccinelli is looking at. About $50,000 a year, someone calculated at another blog.

    To get to $1 billion at $50 thousand a year takes 20,000 years. How, exactly, do you claim Mann has “stolen” a billion from anyone?


  19. Nick K says:

    And your evidence to back your claims, Bubba, is what?


  20. John Mashey says:

    Having fought wardrobe malfunctions on lapel pins, maybe he will go after the Virginia state flag…


  21. bubbagyro says:

    Mann is a charlatan and a crook who has been one of the perpetrators who has stolen countless billions from taxpayers. His request(s) and admissions to delete emails found in the whistleblower emails is plenty of probable cause to investigate, perhaps indict. Cuccinelli is certainly duty bound, especially if someone, inside or outside of UVA, made a complaint.

    The cover up always makes the crime worse. Ask Nixon’s plumbers.


  22. Nick K says:

    Now you know what I have to go through every day living in the district that Michele “What crazy thing can I say today?” Bachmann “represents”.

    And I use the term “represents” in its absolute loosest possible definition since she barely does that.


  23. Elf Eye says:

    As a resident of Virginia, in the last six months I have performed the face palm so many times that I swear the marks of my fingers are now permanently imprinted in my skin.


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