So I will start off with my first impression of the court case overall, and I will leave my relatively raw and detailed notes of what was argued below the cut.
Uva tried to argue that the key issue was that the university was not a person or corporation and instead a state agency. The judge did not seem terribly enamored of this argument, especially since the law under “Corporations” explicitly states that the university is a corporation. Uva tried to argue that down by pointing out it has both a corporate/state agency duality, and that state agency nature was dominant here. I got the impression the judge didn’t buy that argument.
However, the judge was equally unimpressed with a critical argument from the AG’s side. He repeatedly asked them what the basis for a fraud claim was and they never really answered in any more than a vague sense. The judge was also seemed displeased with the argument that the AG had no need to set out a particular instance of fraud to conduct “”only”” an investigation.
These arguments took up the majority of the time in court. The Judge indicated he was not ready to render a decision and would have to think it over. He informed the parties to expect a decision within ten days.
My blow by blow is below:
I arrived at the court room approximately five minutes before the start of the hearing. About 30 or 40 people were present in the audience including some folks who I could have sworn I recognized from somewhere in the UVa hierarchy, but couldn’t place them.
The AG did not show up in person, and was represented by two of his deputy attorneys. The judge in this case is the Honorable Paul Petross, who it turns out is a retired judge who was only substituting for a week. (He seemed a bit wistful at having chosen this week to substitute and having to decide this case)
The hearing opened with a disclaimer by the judge of his associations with the parties in this case. It turns out, in perhaps not that large of a coincidence in a university town, that he had family members who went to UVa, including in the department of environmental science, but before Michael Mann was even an undergrad student. He also knew the attorney general, from having been represented by him in a few court cases last year. Neither side had any objections to his associations, and thus the hearing began.
Uva went first and had three key arguments:
- Uva is not a person under FATA
- The attorney general has no objective reason to believe that a FATA violation occured
- The attorney general failed to state the nature of the conduct he believes is a FATA violation
UVa argued that argument 1 boils down to the notion that UVa has sovereign immunity to investigations under the statute. It’s not specifically specified as subject to FATA, therefore it’s not a person under the statute and not subject to a CID. The judge was a bit skeptical and kept making UVa refine it’s point.
UVA’s second argument boiled down to the fact that FATA doesn’t apply because there is no fraudulent claim. “Being wrong is not fraud,” said UVa’s counsel. The judge seemed open to this interpretation and asked UVa’s impression of what the claim was. UVa’s response was that there really wasn’t any.
UVa also argued that the CID was deficient by way of comparison with a proper CID and cited Commonwealth vs. Paramount builders. UVa also argued that most of the grants were not applicable as they were federal except for one which was initiated prior to the effective date of FATA. However, under questioning from the judge, UVa conceded that the final grant, if administered partly after FATA’s effective date would possibly be subject to FATA enforcement.
UVa also mentioned that the request was overbroad.
Next, the deputy AG was up to rebut UVa’s case. The next ten minutes or so were spent by the judge trying to get a straight answer out of the AG’s counsel about what the nature of the conduct was that was under investigation, while the AG’s counsel continued vague tangentially related answers. (see below for when they actually state something vaguely related to a claim)
Meanwhile, the topic turned to financing and how federal grants magically turn into state money. The AG counsel more or less explicitly said that since the money gets deposited in a UVA bank account, before being disbursed to a professor, then it becomes state funding, even if the nature of the funding was federal. (this is an awfully big stretch, and the judge seemd a bit skeptical but there were other issues to argue, so they moved on).
Again with the state agency vs. corporation stuff. The law explicitly states that UVA is a corporation in the state of Virginia. No weasel words, no ambiguity (I may not like the AG or his actions, but I really think that his arguments were persuasive on this point, and the judge seemed to think so as well).
So about what that claim is and why the AG wants the kitchen sink going back to 1999? The deputy AG’s argument goes something along the lines of thus. Michael Mann cites his “hockey stick” paper in his CV. Michael Mann applied for a UVa grant using this CV. The “hockey stick” is controversial. Therefore we need to investigate the “hockey stick” to determine if Mann’s fraudulently used that research as part of his CV to obtain funding.
The AG deputy then argued that the “hockey stick” was potentially fraudulent because it was referred to as a “trick” in one of the “Climategate” emails. (At this point I may have started writing obscenities in my notebook. The precise phrase is “I’ve just completed using Mike’s[i.e. Michael Mann] Nature trick to hide the decline.” There is no trickery, since Nature is a science journal and a trick is merely a clever mathematical technique. Also, since nature is a journal, there is no vast conspiracy to hide a decline in temperature, since the “trick” is publicly available for anyone to scrutinize. Furthermore, the decline refers not to a decline in temperature, but in a particular type of tree ring used as a proxy for temperature in the late 20th century. The actual instrumental record shows a pretty clear rise in temperature over the same period. The reason for the decline in that particular proxy is still under debate in the science literature. The point of this digression is that if that statement is their evidence of fraud, the AG and his assistants are full of bull-twaddle). They claimed that their brief offered evidence showing potential manipulation of data (GRRR. Most research involves manipulating data. So long as you indicate how it’s manipulated, it’s not fraud). Since there’s a controversy in the science literature, it therefore merits investigation into whether it might be fraudulent (yeah great, just what we need, politicians entering into a science debate. How’d that Scopes Monkey Trial turn out for you? ).
Then the AG’s group tried to argue that they didn’t even need evidence of fraud, so UVa’s argument is invalid. The judge frowned upon this line of argument. Eventually the deputy AG tried to make a strained analogy to Bernie Madoff. If there was controversy in the press about if Madoff was fraud, then the AG has every right to investigate. (of course, it’s a bit different when you’re investigating financial fraud in which case it’s pretty trivial to figure out if something’s amiss. When you’re investigating cutting edge science, THERE IS NO RIGHT ANSWER. So how the FRAK do you determine something is so wrong it’s fraud when you don’t even know what right is?)
They furthermore argued that no one at a state institution has any expectation of privacy, so there aren’t any 4th amendment grounds against the intrusion.
The deputy AG summed up:
There’s an investigation, it’s reasonable to believe documents are relevant, UVa has the information, so therefore the CID is valid.
UVa then delivered a short rebuttal. Despite multiple investigation over the past decade, not one has found any evidence of fraud on Mann’s part. UVa also explained the meaning of the nature trick. Furthermore, in regards to the AG not even needing evidence, the 4th amendment clearly takes precedent over FATA.
UVa then had a bit of a back and forth with the judge about whether the university qualified as a state institution or corporation. The judge pointedly asked for where in the law it said that UVa was not a corporation, and UVa instead deflected from the law to a court case in which UVa was specifically referred to as a state agency. (As I said above, methinks UVa lost this point)
UVa closed with an open letter from Thomas Fuller, a scientist jounralist whose work has been highly critical of Michael Mann’s work (UVa’s words were something close to “one of Mann’s harshest critics.” In context I thought he meant a scientist but this turns out not to be the case (see Marco’s comments below). The gist of the letter was that regardless of the scientific merits of the work, the work is clearly not fraudulent and the AG is way overstepping his authority. UVa also cited academic freedom.
The deputy AG’s closing rebuttal was quoting from a court decision (Urofsky?) that stated Academics do not deserve special protection, since doing so would give them more rights than normal citizens.
The judge indicated he was not ready to rule from the bench, he would ponder the results, and submit a decision within ten days.
The hearing lasted about 1hr and 15 minutes.