Not with a bang, but a whimper.

Attorney General Ken Cuccinelli’s inglorious defeat at the hands of the Supreme Court of Virginia was surely not how he envisioned the conclusion of his UVA fishing expedition. Without any cause for suspicion, or the slightest evidence of malfeasance, Cuccinelli went after Michael Mann and the University of Virginia. In the multi-year saga, he couldn’t come up with a single piece of evidence that Mann’s climatology research was in any way fraudulent (mirroring the many “Climategate” investigations, all of which came to the same conclusion). And yet that’s not what did ultimately did him in. What killed his case was that he simply lacked the power to attempt to pry this information out of UVA—he had no legal authority to do so.

If Cuccinelli had hoped that this conclusion might allow him to retain some shred of his dignity, he hoped wrongly. Although there’s no great surprise in the Washington Post editorial board lambasting him for his stunning waste of government resources (if Cuccinelli wants to find a waste of state government money, he might start with the $600,000 that UVA had to spend to defend itself against his foolishness), he may be rather more chagrined to find that that most conservative of Virginia editorial pages—the Richmond Times-Dispatch joined in on upbraiding Cuccinelli, writing:

[Cuccinelli’s] pursuit of Mann was wrong in just about every way that it is possible to be wrong. […] That it rested on dubious science was the least of its many shortcomings. […] [H]e is a lawyer, and he should know something about the law. […] Cuccinelli never accused Mann of failing to do the work for which he was paid, or of spending the research money he received from the state and federal governments on, say, fast cars and fancy suits. Albemarle Circuit Judge Paul Peatross was entirely right when he said the AG never clearly stated “the nature of the conduct” Mann supposedly engaged in that constituted fraud. “What the attorney general suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the commonwealth simply is not stated,” Peatross wrote. […] If this were a robbery case, then the AG has now effectively been told (a) he used the wrong statute to seek a search warrant, and (b) he can’t use a search warrant in the hopes of finding out whether anything has been stolen. This will not go down in history as an episode of great lawyering prowess.

Sadly, this is probably still a political win for Cuccinelli. His base will undoubtedly see this as him losing on mere technicalities—they’ll just remember that he took on Mann (and, wait and see, will come to remember him as having been victorious).

As the RTD points out, for all of Cuccinelli’s talk of original intent and strict scrutiny, his application of the Fraud Against Taxpayers Act shows that’s really nothing more than that: talk.

Published by Waldo Jaquith

Waldo Jaquith (JAKE-with) is an open government technologist who lives near Char­lottes­­ville, VA, USA. more »

10 replies on “Not with a bang, but a whimper.”

  1. the man and the “base” basically disagree with science and the way that scientific inquiry “works” and what these “small gov” hypocrites advocated for for the govt looking
    over the shoulder of scientists like they do in despotic countries.

    Any way you want to look at it – it shouts out ignorance and big govt “control” of institutions they do not agree with.

    there is no way to sugar-coat what the Cooch was doing and the scary thing is there are those who do want him to “rule” Virginia.

  2. Don’t confuse this screed with legal commentary. Virginia’s moonbatosphere is hyping what was plainly a mild, reasoned decision about issues over which reasonable men may differ. “Inglorious defeat”? “Without any cause for suspicion, or the slightest evidence of malfeasance”? Not hardly. The decision itself belies these assertions, if you’d bothered to read it.

  3. “BlowMe Virginia”? Good Lord, James.

    I read the decision in its entirety (twice). There’s nothing I wrote in this blog entry that the Richmond Times-Dispatch didn’t say in their own editorial. This was a decision that conclude that Cuccinelli pursued a legal entity that he had no legal authority to pursue, with no precedent that might lead him to have concluded that what he was doing made any sense at all. Justice Millette wrote:

    It is well-settled law that Commonwealth agencies are not bound by statutes of general application “no matter how comprehensive the language, unless named expressly or included by necessary implication.” […] This “ancient rule of statutory construction” has been “consistently applied by this Court for more than a century.”

    Not “it’s my opinion,” or “some believe,” but “it is well-settled law.”

    Then there’s this:

    The Attorney General’s argument for a “necessary implication” amounts to a policy preference for CIDs as an investigatory tool.


    They didn’t find one reason to rule against Cuccinelli, but a host of reasons. And then for the dissent to rule against him for other reasons? That’s just adding insult to injury. And what were those reasons? That Cuccinelli was unable to provide any reason that the state should suspect UVA or Mann of wrongdoing or evidence that they acted in bad faith. Or, as I put it, “without any cause for suspicion, or the slightest evidence of malfeasance.”

    To lose a case on such embarrassing grounds make plain that he was acting not with sound legal sense, but that he allowed himself to proceed foolishly down a dead-end path because it seemed satisfying politically. No, I think it’s wholly reasonable to conclude that this should be a significant source of embarrassment to the AG’s office.

  4. I’m just pausing to appreciate the irony of somebody who just referred to “BlowMe Virginia” accusing me of exaggerating something about an ideological opponent in order to make them look bad.

  5. Can anyone really seriously imagine the implications of having an Attorney General “investigate” based on what some folks believe is a Global conspiracy among thousands of scientists and dozens of governments and government agencies like NOAA and NASA?

    After Mann… how many others would then “need” to also be “investigated”?

    these are the very same folks who say that govt should be small and out of people’s lives.

    of course these are the also the same folks who had no problem telling women to purchase a service either.

    making someone look “bad”? Oh Contraire! he’s doing that all by himself.

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