If Virginia Attorney General Ken Cuccinelli loses his bid for governor, one contributing factor may be the standard he himself brought about.
In his campaign book The Last Line of Defense, Cuccinelli quite correctly rails against those who "feel the meanings of the words in the Constitution are 'elastic' " and therefore ignore the Founders' original intent in pursuit of their own political objectives. The principal subject of his ire is the Affordable Care Act; he sued to overturn that law to stop its "overreach" and undo "a power that could just as easily be used for not-so-altruistic purposes down the road."
So far so good. Yet in one of those ironies that make politics such entertaining drama, it now appears that Cuccinelli's own overreaching may come back to haunt him.
Three years ago, the attorney general launched an investigation of climatologist Michael Mann. This considerably raised Cuccinelli's stock among movement conservatives who consider global warming a communist plot.
The attorney general, however, claimed to be concerned about possible fraud. His argument: that Mann might have obtained grants by relying on work he knew to be bogus. In pursuit of that proposition, Cuccinelli demanded copies of emails Mann wrote while employed by the University of Virginia. This was not long after the Climategate scandal broke, and Cuccinelli may have been trying to replicate it.
To pry the emails loose, Cuccinelli issued a civil investigative demand, hanging his hat on Virginia's Fraud Against Taxpayers Act (FATA). Among other things, that statute – like other parts of the Code of Virginia – protects whistleblowers from retaliation. The trouble was that using FATA against Mann required a remarkably elastic interpretation of the law. Essentially, Cuccinelli argued that (1) Mann took state money, and (2) Mann's work has been questioned by others, therefore (3) the state could investigate whether Mann had perpetrated a fraud. On that basis, you could investigate nearly any academic who does original research.
As one of the courts that ruled against Cuccinelli noted, the attorney general could not identify the precise nature of the conduct that constituted the putative fraud. After all, Mann did the work for which he was paid; it's not as if he spent his grant money on hookers and booze. And, in fact, Cuccinelli went so far as to say he was not alleging any wrongful conduct at all. He was, he said, "simply trying to . . . determine whether or not fraud had been committed." Bet he can get you a great deal on a bridge in Brooklyn, too.
Now the attorney general has been caught up in the furor surrounding Star Scientific CEO and political benefactor Jonnie Williams. The company is fighting the state over tax bills. Cuccinelli belatedly recused himself from the case after word got out that he held stock in Star Scientific and had taken gifts from Williams.
The other day Mark Herring, a Democrat running for attorney general, asked federal authorities to investigate ties between Williams and both Cuccinelli and Virginia Gov. Bob McDonnell. Cuccinelli's campaign denounced the request as a political stunt – which it surely is. But it is no more a stunt than the one Cuccinelli pulled investigating Mann, for it relies on precisely the same rationale. Just as Cuccinelli said he merely wanted to find out "whether or not fraud had been committed," Herring says the people of Virginia deserve to know "if any laws were broken."
Last week yet another wrinkle developed. Todd Schneider, the former Executive Mansion chef, faces embezzlement charges – originally brought by Cuccinelli – based on allegations that he took food from the mansion for his personal catering business. Schneider's attorneys contend Schneider is a whistleblower who had related to the attorney general and the State Police information about wrongdoing by McDonnell and his wife Maureen, and their relationship with Star Scientific's Williams.
The motion to dismiss the charges against Schneider notes that Cuccinelli has asked to withdraw from that case because of his own "conflicting personal, financial, and political interests." Cuccinelli's ties to Williams, says the Schneider motion, "created an incentive to prosecute Todd Schneider to compromise him and his credibility as a potential witness in any civil or criminal proceeding that might result against Jonnie Williams or the McDonnells."
This is an explosive implication. If true, it would mean that Cuccinelli, having ignored the original intent of FATA, also might have failed to protect a whistleblower – thereby ignoring the intent of another state law for the sake of his own "not-so-altruistic purposes."
But only "might" – the law does not protect whistleblowers from legitimate prosecution for actual lawbreaking. Besides, defense lawyers can make all kinds of wild claims. The public has no reason or evidence to believe Schneider's assertions. Yet according to the elastic precedent the attorney general set down in the Mann case, one need not contend or even think Cuccinelli did anything wrong in order to ask "whether or not" he did.
As Virginia's gubernatorial race proceeds, you can be sure that Democrats will.
This article originally appeared in The Richmond Times-Dispatch.