Note: Next filing (and therefore update) is Tuesday, 7/20, UVa’s response to Cuccinelli’s detailed response.
Summary: Cuccinelli says anything remotely touched by UVa automatically becomes state funding, even when it’s not coming from the state. When asked to produce specific information he’s looking for, his defense is that he doesn’t need anything specific, since the attorney general can investigate anyone he chooses. When speaking of the first amendment, the chilling effect on research is irrelevant, only the noble pursuit of a fraud case against research Cuccinelli disagrees with. In short, this CID (~subpoena) should hopefully be thrown out the first time a judge rules on it.
Anything in parenthesis is my opinion. Without parenthesis is mostly fact and should be obvious when it’s not.
Cuccinlli’s first argument (p. 16): “The Attorney General has reason to believe that the University has documentary material or information relevant to a FATA investigation.”
Cuccinelli argues that while he may not have enough evidence for an FATA violation, he doesn’t need evidence to collect evidence under the statute. (IANAL, so perhaps the statute is too broadly worded? Surely there is some pre-existing evidence that is needed before one can go about issuing what amounts to a subpoena? Also of note here, Cuccinelli emphasizes how grants were spent, not the research itself as the subject of the investigation. However, the lion’s share of his request is information about research, not grants. Interesting….)
The supporting argument continues on pages 17-21. It goes something like: “I’m the attorney general. Therefore, I am vested with the power of investigating possible crimes or evidence that crimes have not been committed.” Cuccinelli goes on to state that the key is in the wording of the Virginia statute (FATA), which allows issuance of a CID in the case of cause to investigate vs. cause to prosecute. (The argument is well-reasoned and cited, but frightening in its implications. It equates an attorney with a special prosecutor with nearly unlimited power to issue subpoena’s. It seems like a dangerous idea to give a politician nearly unlimited power to dig up dirt on those he disagrees with…..)
Cuccinelli also makes the point that just because Mann has been repeatedly cleared of wrongdoing under other circumstancess doesn’t mean that Cuccinelli can’t also investigate. (While true, there’s this thing called beating a dead horse…..)
On page 22, we begin a new line of argument “The CIDs in this matter comply with the provisions of FATA”. This is where Cuccinelli attacks UVa’s defenses. Oh dear. Cuccinelli has enough here to divide into subparts.
“The CIDs sufficiently state the nature of the conduct constituting the alleged violation of the FATA” p. 23. Cuccinelli says Mann might have made a false or fraudulent claim in his application of Virginia grants. Cuccinelli argues he doesn’t need to be specific at this point in the investigation as to what that claim might be. (Anyone care for a fishing expedition? This hinges on his argument in the previous section…..)
“The University is a “person” for the purposes of Va code 8.01-216.10. and therefore the CIDs are appropriate.” pp. 24-27. I confess here to being lost in the legalese (of both sides). My understanding is that it is a debate over the complicated nature of the relationship between UVa and the state of Virginia. Defeating this politically motivated witch hunt should not hinge on this particular section.
“The grants at issue are potentially subject to the provisions of FATA, and therefore the CIDs are appropriate.” pp. 27-30. (Here is where I personally feel Cuccinelli’s argument is most likely to fail, epically) Here’s what Cuccinelli says: So, UVa says the grants weren’t applicable under FATA. Since I’m only investigating, I need this CID fulfilled before I can answer that question. Furthermore, UVa hasn’t shown UVa didn’t administer the grants. Since UVa is a state institution and administering the grants, it doesn’t where the money came from. Furthermore, the one internal UVa grant that started before the FATA become law was still paying out money.
(This is where Cuccinelli has stretched the law to the breaking point, ignoring the issue of academic freedom. UVa gets almost no state funding. About 5% of its budget comes from the state, and this percentage shrinks every year. Most of that funding goes towards office supplies and the like. Most grants come from tuition and donors. The law explicitly requires Commonwealth funds to be involved. Cuccinelli is arguing that anything touched by UVa, which gets some state funding, automatically becomes state-funded too. It doesn’t take a legal scholar to see that this is a terrible argument and ought to be rejected. This line of reasoning is what I feel in the end will cause the CIDs to be quashed.)
“The information sought by the CIDs is within the scope of a proper investigation under FATA.” pp. 31-35. This section is Cuccinelli’s counterargument against the University’s “overly broad” assertion. Cuccinelli whines for two pages about how it wasn’t too much of a burden before the university suddenly grew a pair and that saying it’s overly broad now is just a stalling tactic. (what he doesn’t note is that there’s a difference between information that’s easily acquired and information that he has a right to acquire. Just because he can get it doesn’t mean he has the right.)
As to why Cuccinelli needs every email ever written by Mann. It basically goes something like: Mann published only selected data. He may have done analyses that weaken his conclusions and chose to withold them. This constitutes manipulation or misrepresentation. (Bull-twaddle. So long as a scientist has some vague justification for their chosen method of data analysis and explains what their method is, it’s not fraud. Much like a lawyer arguing a case, when a scientist publishes a result, they try to support their conclusion as best as possible. As with legal cases, there is no “right” answer, the data is messy, and making it provide useful information requires making tenuous claims. If they are too tenuous, someone will figure it out and write a paper tearing the first one to shreds, but that doesn’t make the first paper fraudulent, since it lead to the second paper which hopefully shed more insight on the subject at hand. This fact is the basis of science and why using lawyers to settle arguments between scientists is a bad idea. Just because one side loses a case doesn’t mean that side shouldn’t have tried its utmost to win.)
The last section pp. 36-41 is Cuccinelli pointing out that academic freedom isn’t a legal concept. (True. However the resulting “chilling effect” on scientific speech from this CID most certainly is, and he doesn’t answer that aspect of UVa’s petition.) One other argument is that the university can’t assert first ammendment rights for it’s staff. (Er. Um. So then who has standing to quash Cuccinellii’s subpoena under FATA? Does Michael Mann, who had no idea this was going on?)