An Overreaching Attorney General

ObamaCare foe Ken Cuccinelli's misguided fight to expand state power in Virginia


Last fall Virginia Attorney General Ken Cuccinelli told an audience in Rocky Mount that in his lawsuits against ObamaCare's individual mandate and the EPA's regulation of greenhouse gases, he is fighting "an out-of-control and overreaching federal government." He has not won the lawsuits, but merely by filing them he has won the admiration of many a member of Tea Party nation.

Yet those who cheer him on might be less enthusiastic if they knew he believes the states may do what he says the feds may not—"order you to buy a product," through the police power that is the states' traditional prerogative. And they ought to shrink—though many do not—from his pursuit of climatologist Michael Mann.

The other day the Virginia Supreme Court agreed to hear Cuccinelli's appeal in the Mann case, which had been shot down last August by a Charlottesville judge. Cuccinelli is demanding from the University of Virginia emails by Mann for the time when Mann worked there, on the Climategate-fueled suspicion that Mann's work might not be entirely honest.

Some conservatives and climate-change skeptics understandably find poetic justice in this. They recall how Virginia's former state climatologist, Pat Michaels, essentially was hounded out of his job at the University of Virginia because—although he agrees with the mainstream view that human activity is warming the planet—he is insufficiently alarmist about it. Gov. Tim Kaine's administration publicly disowned Michaels. Environmentalists tried to have his funding cut. And the champions of academic freedom now so vocally defending Mann were, back then, conspicuously silent.

But tit for tat makes a lousy basis for public policy—and Cuccinelli's campaign against Mann contradicts his small-government advocacy elsewhere.

First, the AG is employing a very expansive reading of Virginia's Fraud Against Taxpayers Act (FATA). FATA is essentially about false claims for payment. It is largely analogous to investigations of Medicaid fraud—an area in which the AG's office does a great deal of largely unheralded work.

For instance, in a January 2011 newsletter, Cuccinelli's office highlights the case of Annette Fleming-McClatchey—a Woodbridge, Virginia, provider of home health care services: "Fleming-McClatchey falsely billed Medicaid for home health services purportedly provided to Medicaid patients, when no services were actually provided," the newsletter says. (She was sentenced to five years in the slammer.)

By contrast, Cuccinelli has not accused Mann of taking federal or state grant money and blowing it on fast cars and loose women. He does not allege that Mann failed to perform the work for which he was paid. Rather, he says Mann came to the wrong conclusions. Even if Cuccinelli is right, that is not what FATA is for.

This is not a maneuver gracefully executed by an attorney general who is arguing, in the ObamaCare case, against Washington's overly expansive reading of the Commerce Clause. How does Cuccinelli explain adopting the narrowest possible interpretation of the relevant language in that case, and the broadest possible interpretation of the relevant language in the Mann case?

Second, Cuccinelli is investigating Mann's scientific conclusions. Now, he says otherwise; he claims only to be seeking evidence of possible wrongdoing. But it is impossible to disentangle the fraud question from the scientific question, since the basis for any allegation of fraud disappears if Mann's work is beyond question. If Cuccinelli is not investigating Mann's scientific work, then he is left saying: "The Hockey Stick graph is right, Mann did the work for which he was paid, but I am investigating possible fraud based on—" what?

The implications of this are, as the university argued in a brief, "staggering." Political winds shift. Suppose Cuccinelli prevails in the Mann case, and a few years hence a stridently left-wing attorney general succeeds him. That AG could use the Cuccinelli/Mann precedent to "investigate" the scholarship of, say, the George Mason University economics department, which boasts a number of staunch free-market advocates, including columnist Walter Williams. Economics is famously disputatious. It would be the work of a moment to allege that the advocates of laissez-faire policies defrauded the taxpayers by peddling bunk on the taxpayers' dime.

And that brings up a third problem with the Mann case. Researchers need to retain the right to be wrong—even woefully wrong. (In fact, insisting that scientists get it right misunderstands the scientific enterprise, under which even established dogma remains only contingently true.) If Mann and other climate-change alarmists are badly off course, time will prove it without Cuccinelli's help. But if politicians start interrogating scientists whose work is open to question, then scientists may decide to stick with the safest, most well-established lines of inquiry—perhaps impeding scientific progress.

Nothing about the Mann case evokes a sense of modesty or restraint. If Cuccinelli wants to rein in government power, then he could start at home. But perhaps he does not. It may be telling that in his comments last year he denounced "overreaching federal government." Perhaps overreaching state government is more to his liking.

It is not, however, any kind of an improvement.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.