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.

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  1. Mann took taxpayer money and so his work is up for review. If Mann does not want the public to know what his work is and how he conducted it then he should not take the taxpayers money.

    If a garbage man is paid by the public then the public can investigate whether or not he has conducted his work properly. Mann is no different then any other person who takes government money to perform a service, he is simply being asked to show his work.

    1. His work should be up for review by the scientific community and the public at large when it is published. But being wrong, the last time I checked, is not a criminal activity. To use your analogy, the garbage man should be investigated for fraud if there is evidence that he collected paychecks but did not actually go collect garbage. He should not be investigated if he did not put garbage in the truck the way the attorney general likes. Drawing a conclusion that is unpopular based on your data is not a crime. If there is an issue of “showing his work”, it should be quite clear in any decent scientific study what methods were used. I don’t see any evidence here of an allegation that Mann did not show up to work, collect data, and analyze it. Whether his conclusions are agreeable to the AG should not be an issue.

      1. They aren’t looking for his “being wrong.” They want to look for deliberate fraud. What’s the problem?

        1. I think the article makes this abundantly clear. They want to look for fraud not based on any allegations of fraud or reasonable suspicion, but mainly because they dislike the author’s conclusions. The article states why this is problematic and should be especially concerning for people whose political views often find themselves out of vogue, such as libertarians.

          1. The article does not make it clear, Hinkle alleges that it is the conclusion being investigated, but that is so much bs.

            Mann manipulated data, and omitted other evidence that was not to his liking, that is not scientific work anymore than Fox or CNN is the whole story.

          2. Clear as mud.

      2. “”‘His work should be up for review by the scientific community and the public at large when it is published.””

        He has published it, and even made huge claims about it, now its time to see what the real facts are. Sorry there is nothing special about science, and in fact any science which hides the facts is not science at all.

        1. But you fail to answer the question of why the Attorney General’s office needs to get involved. There are certainly a number of other manners of determining whether fraud has occurred or not. You can condemn the peer review process if you’d like to. There are other means. Journalistic inquiry. Private lawsuits seeking a release of documents. Etc etc etc.

          1. You can say the same thing about the taxpayer paid garbage man? The reason why you use the Attorney General is because finding fraud and misuse of taxpayer money is the Attorney Generals job. The journalistic inquiry and private lawsuits don’t have the resources nor force of law that the Attorney General has.

      3. To use your analogy, the garbage man should be investigated for fraud if there is evidence that he collected paychecks but did not actually go collect garbage.
        Yes, garbage collection agencies that bill for non existent services should be investigated for fraud.

    2. Normally one reports to his supervisor, not to law enforcement for criminal prosecution.

      I have a buddy who is in internal affairs at a large police department. Rather than investigating misconduct during investigations, police brutality, etc., they spend a large percentage of their time investigating “misuse of time” – goofing off. In normal business it is the job of the supervisor to ensure that his employees are completing their work. Because of the layers of union-enforced bureaucracy involved in firing an officer, they have to have an official IA investigation in order to discipline an officer for running home for a nooner on the clock.

      1. If we had Censors for federal, state, and in this case, local government, this problem would be solved.

        1. If anyone is wondering what the heck I’m talking about, here’s one of a number of threads on the modern-day Censor.

  2. If he loses the Mann case, then he would set a good precedent?

  3. Researchers need to retain the right to be wrong?even woefully wrong.

    The many private donors to ongoing phrenology research undoubtedly are cheering this sentiment.

  4. This article completely misses the mark. Mann fraudulently produced results without going through the motions of doing the work then hid the basis for the work, refusing to release the raw data, as any scientist is required by the professional ethics of the field. Had he been anyone but a global warming zealot, he’d have been fired by the university immediately, and would then have been subject to legal sanction as well. Cuccinelli is doing what he must to break through the intransigent University administration. When the survival of industrial civilization is at stake, a little latitude is required for the defenders. Without subpoena power over government documents (Mann’s work is government work) then government’s can’t even tell whether they have been defrauded.

    1. So in other words, the failure of the University to properly audit its staff now merits an investigation into the researcher by the state AG? Shouldn’t the state board of trustees be investigating the matter internally? If Mann’s bosses refuse to fire him despite shoddy performance at his job, that’s still not a cause for a criminal investigation. Why don’t you investigate all the university janitors who aren’t sweeping up every minute of the day for fraud too? After all, they’re taking taxpayer money too.

      1. “””Why don’t you investigate all the university janitors who aren’t sweeping up every minute of the day for fraud too? After all, they’re taking taxpayer money too.””‘

        They should be investigated if they are not doing their work properly, especially if the university does not investigate. And if its found that the janitors were fraudulent and that the university staff hid this fraud then they all should be fired and charged with fraud

        Sorry if you take money from taxpayers at the point of a gun and then you have no claim for privacy about that money. If you want to keep your work secret, pay for it yourself

        1. And investigated by the Attorney General? Are you kidding me?

          1. If you want to keep your work secret, pay for it yourself.

            Would you apply this same doctrine to black budget military research? Classified programs like nuclear weapons research? Don’t answer that. I feel like I already know the answer.

            1. First I don’t think there should be any “black budget” when it comes to anything the government does with taxpayer money.

              Second I think that even if we have a “black budget” it still should be open to investigation by the Attorney General to look for fraud. I firmly believe in the idea that no one is above the law, especially when it concerns taxpayers money and government which has no justification without the publics consent.

    2. “When the survival of industrial civilization is at stake, a little latitude is required for the defenders.”

      The survival of industrial civilization? Hyperbole much?

      Also, smacks of “the ends justify the means”.

      1. I think what he means is that if the Global Warming zealots get their way and fossil fuels are banned (except for government uses of course), industry as we know it will cease to exist.

        1. Now who’s being alarmist.

          1. Tony|3.18.11 @ 3:25PM|#
            “statement within normal range of stupidity from ignoramus who can’t read ‘if-then’.

            Thanks, Tony, but not down to your standards.

  5. It is the States right to force people to buy a product, according to the Country’s rule book (the Constitution of the US). I would hope the people of each state have created their own State Constitution to not allow such action, but that is for the people of each state to decide.

    1. You’re talking about Rule of Law, where there is a Supreme Law of the Land and all lesser laws must conform to it.

      Quaint notions like that were set aside long ago in favor of Rule of Man, where every possible problem, real or perceived, can be solved through legislation backed by men with guns.

      1. States do not have rights. The founding generation were all too aware of the propensity of state governments to meddle where they shouldn’t-after all, the framers, overwhelmingly, had nothing but disdain for democracy.

        1. The founders thought that states don’t have rights? Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

          I’m assuming here that you take rights to mean powers. If you’re simply saying that all rights are individual rights, ignore this.

          1. States do not have rights against the individual, but they do in relation to other political bodies.

  6. You are correct about scientists needing the right and freedom to be wrong. However, being wrong and lying are two totally different things. If an investigation determines that he acted intentionally then at the very least he should be discredited and his conclusions reevaluated.

    1. That may be true, but it is not at all the business of the State AG to conduct an investigation to show that a scientist is wrong.

      1. It is the business of the State AG when taxpayers of the State had their money taken to pay for the science. These scientists did not seem to mind having the state take money from the taxpayers and give it to them so I don’t see any reason to defend the scientists when the state comes after them and ask for proof that the work that was paid for was done properly.

        Maybe a few more investigations and these scientists won’t be so eager to take the taxpayers money.

    2. If he were studying insects nobody would give a fuck if he was a bad scientists or even if he was lying, except his department chair or university president. If you can’t see the naked politics here you aren’t looking close enough.

      1. Tony|3.18.11 @ 3:25PM|#
        “False equivalence followed by questionable assertion”

        You’re beginning to sound desperate, Tony.

        1. No. Tony is actually right here. There is extreme danger inherent in these ideas. You claim that Mann is a fraud who does bad science. Someone else could easily claim (and be entirely correct from the auspices of their philosophical system) that research conducted at laissez faire institutes is fraudulent and represents bad science. There’s no reason to introduce politics into the picture. There are mechanisms in place for determining whether research is fraudulent.

          1. You’re giving him too much credit, I doubt he was thinking along those lines.

          2. “”””that research conducted at laissez faire institutes is fraudulent “”

            If the laissez faire institute was using taxpayer money then the AG has the right and responsibility to investigate for fraud

            If the laissez faire institute was using private money then that AG should stay out unless the people who gave the money asked the AG to investigate.

  7. http://www.amconmag.com/blog/d…..dam_smith/

    “Our merchants and master-manufacturers complain much of the bad effects of high wages in raising the price, and thereby lessening the sale of their goods both at home and abroad. They say nothing concerning the bad effects of high profits. They are silent with regard to the pernicious effects of their own gains. They complain only of those of other people.”– Adam Smith The Wealth of Nations

    “The subjects of every state ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.” –Adam Smith The Wealth of nations

    1. So, you support a flat tax?

      1. So, if you think Adam Smith trumps Mises or Rothbard, you’ve come to the wrong place, commie.

  8. So in other words, the failure of the University to properly audit its staff now merits an investigation into the researcher by the state AG?

    When a state employee is accused of committing fraud, why is that not within the purview of the AG?

    1. If the problem is that the University is spending the money on academic projects whose conclusions the state politicians don’t like, the answer is not a criminal investigation, the answer is either for the politicians to more narrowly define what the money is to be spent on (e.g., “Here’s some money for client research, but don’t spend it on any studies that support that commie climate change hokum,”) or to cut off funding altogether.

    2. If he put in the time but produced poor, half-assed results, that isn’t fraud, that’s just being a shitty employee. Or, since we’re talking about government, an average employee.

  9. If the problem is that the University is spending the money on academic projects whose conclusions the state politicians don’t like, the answer is not a criminal investigation,

    I would agree, up until the point where there are credible allegations of fraud by the researcher, either in connection with obtaining tax-funded grants or programs, or using tax-funded grants or programs.

  10. Good article! Pity so many of the libertarian commenters seem quick to defend a state-sponsored witch hunt against a scientist. For shame.

    1. You mean the state taxpayer supported scientist who had no problem taking the taxpayers money and now does not want to show what he did with it.

      Sorry this “scientist” is just another tax leach.

      1. There would be no science as we know it without government support. It doesn’t matter how it’s funded. They need to be allowed to do their job without meddling by partisan cranks.

        1. So if you call yourself a scientist you can get taxpayers money and nobody can investigate your use of tax money. Do you say the same about a government garbage collector? Do they get to do whatever they want and the government can’t investigate them? Is that partisan meddling?

          Sorry, if you take the taxpayers money then everything you do with that money is open to investigation. If you don’t like it, then don’t take the money.

          1. The investigation isn’t based on the fact that he was dicking around and spending the money on hookers and blow, it’s obviously motivated by a dislike of the work he produced — the most charitable thing you can say is that they don’t like the procedures he followed (note: this is a rationalization; they wouldn’t care or notice if they didn’t like his conclusions). But that’s not really “fraud”, that’s just doing your job poorly.

            1. Fraud is not just “dicking around and spending the money on hookers and blow”. Even if he spent the money helping orphans and widows, its still fraud if that not what the money was suppose to be spent on. Its also fraud if his personal agenda twisted the results to come up with what he wanted. If he want to hide data, twist results, proclaim false conclusions he can do that with his own money, once he uses the taxpayers money then the taxpayer gets to use the force of law to investigate.

              As to the work produced, its not science until its reproducible and its not reproducible until the original data and methods are published and that is what this investigation is about.

        2. —“There would be no science as we know it without government support”—

          Now that you mention it, I can’t think of a single scientific advance that was accomplished without Govt. funding. How could I have missed that for so long?

        3. How much government money did Einstein receive while working on the special theory of relativity?


          1. Really? Wasn’t Einstein working for the patent office? Pretty sure that’s a governmental entity with government funding.

            1. was this before or after he figured out how to put bubbles in beer?

            2. But he wasn’t getting paid by the Patent office for relativity and did his work on his own time while still performing his patent office job. If Mann had done his work on his own time then I think the Attorney General has no bases to get involved, however Mann was paid by the taxpayer for his climate work so his climate work is open to investigation by the government

              If on the other hand Einstein was doing relativity work during time he was being paid for patent work then he should have been investigated for fraud.

        4. BS, it’s called R&D.

          There may be subsidies, but trying to imply that science would not happen without government is one of your more nonsensical statements.

          1. Didn’t mean to imply that. But the government funds basic research (the stuff that happens at universities) on a scale other entities like corporations don’t. They may be good at R&D, but basic research is what allows R&D to happen.

  11. Also – a state AG is a statist, power-grabbing puke?

    Whoda thunk it?

  12. 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.

    No, they want to see if Mann lied about his actual results. If the reporter’s logic is right, a researcher who potentially lied about his test results couldn’t be investigated. Oh, right, I forgot. Drug companies are evil capitalists, while universities are pure and good and work only for the good of all mankind. Totally different, man!

    1. That should be “drug company researcher who potentially lied…”

    2. I think it’s going to be very difficult to show that he deliberately fudged his numbers. And the precedent is worrisome, especially when there are less severe ways of dealing with the issue.

  13. I’m trying to figure out what here is a problem from an American Constitution libertarian POV. As I understand it the 50 states are allowed to do things that the Federal government can’t, include possibly purchasing goods or services. If the State AG was calling for investigations into a “private” university I could see the problem, but Univ of VA is a state school. If the State’s AG thinks that school isn’t doing its job on an issue, then I don’t see how the AG is wrong to pursue that. If the citizens of the state disagree he loses his job at the next election.

    This really just seems like commentary posted because the AG is goring someone’s ox, not because it is an action the state AG can’t take.

    1. It’s the AG’s job to pursues CRIMINAL matters. The above article claims that the AG’s case is that “Mann came to the wrong conclusions.” (I don’t know if that is true or not) Coming to the wrong conclusions cannot be a crime.

      1. Coming to the wrong conclusions on purpose to continue your research using taxpayer dollars is fraud.

        You know some people talk about AGW researchers like it’s a conspiracy. It’s not. It’s simple self-interest. If you get more grants for claiming the sky is falling, your research will always show that. This idea that the Top Men are incapable of fudging the numbers to keep their rice bowl full is very funny to me.

  14. 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.

    Really? All we have is your word. No supporting statements, no link to a brief, nothing. Same with your assertion that Cucinelli is going after Mann merely for reaching the wrong conclusion, which anyone familiar with the GW scam knows is not the case.


    Anyway even if Cucinelli believes in the alleged state prerogative to force their residents to buy services I still see it as a win if we reduce the overreach of the federal government. It means that rather than fighting the freedom battle with one huge leviathan, there are smaller fights and better odds within the 50 states.

  15. Yeah Cuccinelli’s a jackass. Last year he ok’ed the raiding of JMU’s newspaper office and photographs so they could prosecute students involved in the police riot at Springfest. Trampling over the rights of journalists to get people in trouble for the heinous crime of drinking while 20 years old

  16. From what I understand here, part of this issue is that UVA won’t release his emails as part of a FOIA request. If this is true, then Godspeed to the Virginia AG. We need to know what’s in those emails.

    1. We need to know what’s in those emails.


  17. A narrow reading of the commerce clause? Get real. A narrow reading would outlaw virtually everything Washington does today.

  18. Last quote heard from Toni’s dad after abruptly leaving for good upon hearing that his wife was pregnant with their one and only child.

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