In keeping with our role as a site that tries to deal with the science of climate change rather than the politics, we have specifically refrained from commenting on various politically-motivated legal shenanigans relating to climate science. Some of them have involved us directly, but we didn’t (don’t) want to have RC become just a blog about us. However, the latest move by Ken Cuccinelli, the Attorney General of Virginia, against Mike Mann and UVa is so ridiculous it needs to be highlighted to the widest audience possible.
For background, Rosalind Helderman at the Washington Post has covered most of the story. The last installment was that Cuccinelli’s attempt to subpoena 10 years of emails between 39 scientists and Mike Mann and ‘all documents’ residing at UVa related to four federal and one Commonwealth of Virginia grant, was thrown out by a judge because Cuccinelli did not provide any reason to suspect that fraud had occurred and that federal grants are not covered by the relevant statute. Without due cause, the AG is not allowed to investigate (and without such a restriction, there would be no end to politically motivated witch hunts).
Yesterday, Cuccinelli filed a new demand that takes this previous judgment into account. Namely, he attempts to give a reason to suspect fraud and only targets the Commonwealth grant – though still asks for 10 years of emails with an assortment of scientists. However, his reasoning should scare the bejesus of anyone who has ever published a paper on any topic that any attorney might have a political grudge against. For the two papers in question the fraud allegation is that the authors
… knew or should have known [that they] contained false information, unsubstantiated claims, and/or were otherwise misleading. Specifically, but without limitation, some of the conclusions of the papers demonstrate a complete lack of rigor regarding the statistical analysis of the alleged data, meaning the result reported lacked statistical significance without a specific statement to that effect.
So in other words, if you publish a result that might turn out to be statistically weak or with understated error bars – even if this was in no way deliberate and regardless if you were aware of it at the time – Cuccinelli thinks that is equivalent to fraud. And any grant that you apply for that even cites this paper would therefore be a false claim under the statute. Cuccinelli is specifically not stating that deliberate scientific misconduct must have occurred, all you need to have performed is an inadequate (according to him) statistical treatment or you made an unsubstantiated claim. If you want “unsubstainted claims”, Soon and Baliunas (2003) (cited approvingly by Cuccinelli) would be a great example of course. But more generally, this would clearly open up pretty much the entire literature to ‘fraud’ investigations since one can almost always improve on the statistics. You didn’t take temporal auto-correlation into account in calculating the trend? Cuccinelli thinks that’s fraud. You didn’t fully characterise the systematic uncertainty in the “unknown unknowns”? That too. You weren’t aware of the new data that showed an older paper was incomplete? Too bad. This is not just an attack on Mike Mann, it is an attack on the whole scientific enterprise.
However, as appalling as this reasoning is, Cuccinelli’s latest request is simply bone-headed because the grant in question, entitled “Resolving the scale-wise sensitivities in the dynamical coupling between the climate and biosphere”, simply has nothing to do with the MBH98 and MBH99 papers! Even if one agreed with Cuccinelli about their quality (which we don’t), they are not referenced or mentioned even obliquely. The grant was to look at how climate variability impacted land-atmosphere fluxes of carbon, water and heat and doesn’t involve paleo-climate at all. So even if, for arguments sake, one accepted Cuccinelli’s definition of what constitutes ‘fraud’, nothing associated with this grant would qualify. We doubt there could be a clearer demonstration of the inappropriateness of Cuccinelli’s case.
Well, maybe one. In the attachment to the subpoena, Cuccinelli repeats his claim that since Mann used the word “community” in a blog post here on RC, he must therefore be using “Post Normal” jargon, and that might be “misleading/fraudulent” in the context of a grant application. Really? Scientists who use the word “community” regardless of context are therefore to be suspected of fraud? This is just embarrassing.
It might be worth pointing out that under the Virginia Bar ethics guidelines, it states that:
A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.
We can only wonder when this will start to be applied to the current AG.
444 Responses to "Cuccinelli goes fishing again"
Adam R. says
This is an outrage.
This idiot’s harassment of a working scientist is a sign of things to come. The right wing in America has named science as an enemy, and it will stop at nothing to stifle science it doesn’t like. Anyone who thinks it will stop with climate science is kidding himself.
Todd Albert says
I add that the blog post that Mann co-authored on RC is a BOOK REVIEW! Cuccinelli should be disbarred.
Kevin McKinney says
Reprehensible, to say the least. It wouldn’t take much to raise this to a level of absurdity meriting the adjective “Kafkaesque.”
But if “a fool persisting in his folly will soon become wise,” this shouldn’t take too long.
Russ Doty says
Turn him in to the Virginia Bar.
Surely this cannot stand in court ? that phrase ‘should have known’ is quite orwellian.
last night i spent an hour or two speaking with a gifted young man about a research career. he has just obtained a Bachelors from a very good university in another country and has incandescent GRE scores.
i regret to say, i shall find it difficult to recommend a US university
[Response: I hope you don’t really feel that way. There are many great Universities in this country, whatever the political climate may be!–eric]
[Response: And that doesn’t make sense. –Jim]
Thus, finally, we have the gauntlet in the face. Error becomes intent. The powers that be can, by their own agenda driven ‘standards’, transform any research of any kind into skullduggery. This is, in fact, that moment which we cannot allow to continue: “it is so because I say it is so”. Truth has always been elusive for this AG, but now he doesn’t give a fig about truth. He needs a lever to accomplish his agenda, and whether this ruins the lives of people is of no moment to him. Let us be blunt about the matter. Destroying people is not a problem for Mr. Cuccinelli; they are merely impediments to his goals.
At this point, this story needs to have national attention, if for no other reason than to protect a man of deep integrity, Dr. Mann, and his colleagues as well.
Mr. Cuccinelli will not flinch at my words; I suspect he will merely smile. What would matter more to him is to become irrelevant. And that should be our goal.
Joseph O'Sullivan says
What is the University of Virginia’s position on this? Have they hired outside counsel? UVa has a top-notch law school, and maybe they can get some alumni lawyers to help out.
Cuccinelli is conducting some political theater, and his actions amount to little more than a fishing episode. Perhaps a complaint to the bar association is in order.
[Response: We had a minor discussion as to whether fishing or hunting was the appropriate analogy, and concluded it had elements of both.–Jim]
Dave Werth says
I’m pretty much stunned speechless by this. What a waste of taxpayer money.
Rod B says
“Fraud” has been dumbed down over the years, which is unfortunate IMO. Maybe that gives Cuccinelli some loophole. That being said, Cuccinelli strikes me as running completely amok, and from what little specifics I know might be prima facie more criminally culpable than Dr. Mann. (Just a figure of speech: I’m not implying that Mann is criminally culpable — I don’t think he is.] I might be wrong (not being a lawyer) but if there is no brand newly discovered evidence after the first toss out, I don’t think he has a right to refile the case — ethically at least, maybe legally. If he refiles the same case, even watered down, but with some (not new) evidence he “just forgot” the first time, he seems to be running close to contempt of court — IMHO.
[Response: There is no question that Cuccinelli is abusing power, but the illegality or legality of that remains a bit obscure to me.–eric]
Mark A. York says
Yeah, this is scary. It’s the classic witch hunt syndrome seen throughout history. The problem with confirmation bias is it’s total blindness to the actual facts of any issue. You guys know the problem: State of Fear. The fear of the implications of climate science. Some people think that all lawyers are liars by trade and some get elected AG. There’s truth to that. This is a case in point.
[Response: Well, let’s be careful shall we? “All lawyers” is not any more useful than “All scientists”. –eric]
John Mashey says
Well, Cuccinelli need to keep trying to keep his funders happy, especially those in energy, including plenty of coal, utilities, and Koch Industries.
One that may not be obvious is Questfore Communications … run by his father, Ken Cuccinelli, Sr.:
“A former head of marketing for a Fortune 500 company (CNG Pittsburgh), Ken was named 1994 Gas Marketing executive and also served as chief operating officer of CNG Energy prior to joining Quest Fore. In addition to his chairman duties, he also serves as president of International Business Ventures LLC, a worldwide consulting and prospect development company that is active in Europe and Latin America.”
Having grown up near Pittsburgh, I recognize CNG = Consolidated Natural Gas.
The last sentence is vague, if it is gas development in Europe … well, part of Russia is in Europe.
Also, one may recall that Cuccinelli and his sidekick Wesley Russell (who actually signed the complaint) both got their JD’s at George Mason University, a place with which I’ve become much more familiar of late, due to this, whose Appendix A.6.1 noted the amounts of money from the Kochs, Richard Mellon Scaife, etc going to GMU and its various institutes, one of which had Fred Singer for a while. Pat Michaels taught this course this summer. Someone with spare time might take a careful look at that syllabus.
While a blog comment is not a reliable source, see “Cuccinelli an enemy to academic freedom.” If Terry Wolfe’s description of the mis-use of the GMU honor code is anything like accurate, this is not nice, but sounds like fine student practice by Cuccinelli & Russell for witch-hunts.
Of course, as seen in Strange Scholarship in the Wegman Report, GMU may have some serious problems of academic misconduct, not just in the Wegman Report itself, but in things like plagiarism in 3 PhD dissertations, i.e., some rather lax PHD supervision, especially when all 3 of Wegman’s students won departmental “best dissertation of year” awards. In most schools, plagiarism in a dissertation might have consequences.
GMU was having
problems in 2001 with misconduct:
“The major conclusion of the Task Force was that large segments of both students and faculty ignore the Code’s provisions. We need to remedy this. George Mason is, and will remain, an honor code university. The university maintains an active Honor Code committee, and it does take action after appropriate inquiry.”
“Finally, it is essential the faculty themselves set a high standard in academic integrity. We are periodically reminded that researchers and teachers do not always live up to the norms we urge on our students.”
Recall that Cuccinelli & Russell seemed to be running part of the Code enforcement.
Maybe JD supervision has problems also?
John P says
This truly is scary. The malfeasance of prosecutors and the lack of consequences for their awful mistakes, such as putting innocent men on death row, is legend in this country. Just read the interview with Peter Neufeld on Slate sometime. Some prosecutors are incapable of admitting error even in the face of incontrovertible DNA evidence of their wrongful conviction of a suspect. This has struck me as a huge problem in our legal system for many years. Who guards the guards?
Edward Greisch says
6 eric: I hope you agree that what passes for truth in court would not pass muster in science. Just look at the number of death row convictions that get overturned because of scientific evidence.
I think he is on a mission to increase the export of brains, but I don’t understand why he had to start with his own.
G. Thomas Farmer, Ph.D. says
As a two-time graduate of UVA, I can tell you that the Commonwealth of Virginia contributes approximately 6.5% of the operating costs of UVA. The University refused to respond to Cuccinelli’s first request and my guess is that they will do the same with his latest fiasco. I agree that Cuccinelli should be disbarred and I plan on filing a complaint with the Virginia Bar.
George Mason University is \owned\ by the Kochs and Singer teaches or taught there. GMU is not known for its academics.
Edward Greisch says
It is clear that a lot of people want the enlightenment to be over. But they still want the technology that requires science. In the case of GW, the “Powers That Be” must give up political power if the human race is to survive. Nobody ever willingly gave up political power. In the past, political power was only given up when it was taken away by force of arms. You have to understand that that is how they see this event. By “this event” I mean the decades long struggle to get a strong climate bill passed. Does that cast a new light on the subject?
@7: “What is the University of Virginia’s position on this? Have they hired outside counsel?”
UVA has already stated they would resist this subpoena just as they resisted the one quashed in August. They have hired outside counsel at considerable expense.
forrest curo says
But what a wonderful literary movement he’s called into being!
Can I be ‘Post Normal’? Am I? And what might it mean? Is there a dress code, so we can recognize one another and feel Cool about belonging?
Can I write our manifesto?
jacob l --not mack says
I’m not a lawyer or a scientist but wouldn’t fairness require this standard to be applied to ALL grants in Virginia, i.e. couldn’t a lot of medical research be stifled if this “rule” is applied. For that matter could there be a grant related to Bextra or Vioxx ? I remember reading something about xerox suing apple a couple of decades ago and having there case dismissed because they didn’t include Microsoft. Could something like this be a defense?
I sincerely hope that people will learn witch hunting won’t change reality any more than legislation can set the value of pi.
best of luck jacob l
it may well be you have good universities in your country, but the atmosphere Cuccinelli and his kind create makes those very hard to recommend, it almost seems like they want to externalize education outside your country.
Doug Bostrom says
It wouldn’t take much to raise this to a level of absurdity meriting the adjective “Kafkaesque.”
Well, the central character is a cockroach.
Martin Vermeer says
Well, “post normal science” is in fact an elaborately intellectualized, politically useful fraud. I could imagine Cuccinelli liking it… Mike Mann, or any actual scientist for that matter, not so much.
Surely, if this went further, Mann would be exonerated and Cuccinelli would have to leave the stage with his tail between his legs
What is there to lose apart from time and inconvenience?
Dan Moutal says
Quick question regarding timelines. It is my understanding that the grant in question was given to Mann before the Virginia Fraud Against Taxpayers act became law. is this correct?
Also it is my understanding that that law is not retroactive? Is this also true?
Martin Smith says
“There is no question that Cuccinelli is abusing power, but the illegality or legality of that remains a bit obscure to me.–eric”
…which is why it looks to me like the previous court and the university have given Cuccinelli the rope to hang himself. If this goers to trial it would be one of those precedent setting, recalibration moments when the scientific process is upheld and witch hunting for political purposes is slapped down hard.
John P. Reisman (OSS Foundation) says
I agree with post #10 Mark A. York. The best analogy is probably witch hunt. Arcane, but seemingly befitting the characterization, context and similar in application of reason.
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Scott A Mandia says
Sickening. We need to speak our minds OFF THIS BLOG and directly to OUR ELECTED LEADERS and THE MEDIA.
A list of contacts for US Government elected leaders and many media outlets (newspaper, television, and radio) appears here:
Please, please, please send letters to these people and alert them to this witch hunt.
Use this link in the future when needed and I would enjoy adding any new contacts you can send to me as long as the contact info is publicly available. I do not wish to expose private email info (unlike the AG).
Kevin C says
There might be a reason on making this challenge using an irrelevent paper. He might be probing the judge to see what sort of reasons come out when this request is rejecting, with the aim of combining the strongest possible argument with the most relevent paper. This could backfire of course by predjudicing the judge against any future requests. But if the judge shows any evidence of being predjudiced, then there is grounds for appeal.
(I am not a lawyer, but IIUC similar tactics were used in the SCO/Linux cases.)
Lloyd Flack says
This twit seems to think that scientists should wait till they are absolutely sure that they are right before publishing. Since scientists tend to be good at thinking of ways that they might be wrong, this seems like a way to prevent scientists from publishing anything at all.
The law tries to act as if it can provide near certainty by following set established procedures. All scientific procedures are works in progress and are refined all the time. Science squarely confonts uncertainty. The law tries to wish it away. Science, working in ways that the legal profession would see as good procedure would be bad science.
Richard Steckis says
Whilst I disagree with most of you about AGW and am not convinced by Mann’s work, I have to say that persecuting a scientist in an attempt to silence them is morally moribund.
Steven T. Corneliussen says
I see only 13 comments so far, but in case the likely flood of new comments doesn’t contain this thought, here it is: Your posting’s clincher calls to mind the bubble-bursting question that Joseph Welch famously asked Sen. Joseph McCarthy in 1954. Your ending simply quotes the ethical guidelines of the Virginia bar: “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” Mr. Welch simply asked Sen. McCarthy, “Have you no decency, sir? At long last, have you left no sense of decency?”
Steve Metzler says
I like (well, ‘like’ is the best word I could think of) how the grant he is going after had nothing to do with paleoclimatology. Priceless. Not only that, but the grant in question was awarded in 2001 (IIRC), and the Virginia fraud act didn’t come into effect till 2002. How does a guy that dumb get to be AG in the first place? Oh, wait… he was elected. Presumably he ran on the Enemy of Science platform.
OK, so assuming this one gets tossed out like the last one did, what will happen to Cuccinelli then? Business as usual? Or are there potential repercussions arising from the AG wasting (even more) taxpayer money on Political Witch Hunt: The Sequel? I’m assuming the university can counter-sue on the grounds of “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.”
Ben Lawson says
Ken Cuccinelli is showing himself to be an strange mixture of ruthlessness, venality, and stupidity. Is he out of control, or is he trying to act in his benefactor’s interests?
While reading the legalese in Cuccinelli’s CID, what struck me is that he’s trying to accuse Mann of fraud because Mann cites his previous work to help him win the grant: “To the extend that Dr. Mann did reference or rely on his past work in these papers (or others like them) to aid in winning the grant when he knew of should have known of the potential of the papers (or others like them) to mislead the grantor, such action would subject him to potential FATA [Fraud Against Taxpayers Act] liability.”
Thus, is appears Cuccinelli’s argument boils down to this:
1. Mann published the “hockey stick” paper.
2. Some people disagree with the “hockey stick.”
3. Mann has cited the published “hockey stick” paper as evidence of his credentials as a scientist, including to help obtain a grant from the Commonwealth of Virginia for unrelated research.
4. Since Mann won’t admit his “hockey stick” paper is wrong, Cuccinelli asserts he’s committing fraud.
Barton Paul Levenson says
I appreciate your post #30. Thank you.
Barton Paul Levenson says
And let’s not forget KC was the guy who objected to the bared breast of the goddess “Virtus” on the Virginia state seal. I mean, has anybody ever actually looked at the Virginia state seal since about 1870, and if so, did they care about seeing Virtus’s nipple?
John Mashey says
OK, this thing mentions the Wegman Report 6 times, including obscure references that almost certainly came from there, like McKitrick’s talk in Australia.
See pp. labeled 17-21.
Will people *please* go look at Strange Scholarship in the Wegman Report, (SSWR, pronounced “sewer”),just read the 6-pager. Cuccinelli is simply continuing in the GMU tradition of Wegman&Said, and the evidence for their wrongdoing (not just incompetence) is so strong that if GMU does not soon take action, I think there should serious concerns about accreditation, whose next round is coming next Spring. There also ought to be serious concern about Federal funding, for reasons shown in the paper.
But back to the Cuccinelli document, that section.
This raises the question: Did Wesley Russell write this himself, or DID HE GET HELP? AND FROM WHOM? IS THERE ANYONE IN VA WHO MIGHT HELP OUT?
In a quick look, I noted he mis-cited the McKitrick talk as “APEC Study Group, Australia April 4, 2003.
From the Wegman Report, that’s really:
McKitrick, Ross (2005) “What is the ‘Hockey Stick’ debate about?” APEC Study Group, Australia, April 4, 2005, and so you can see the URL, it is:
I guess they wanted to base their arguments less obvious than:
‘McIntyre, Stephen and McKitrick, Ross (2005) “The Hockey Stick Debate: Lessons in Disclosure and Due Diligence,” September 7, 2005’
which was really:
http://www.marshall.org/pdf/materials/316.pdf (George Marshall Institute)
*that* was really the basis for the Wegman Report, see Appendix W.8.9 in SSWR.
What is the legal process for a recall in Virginia? This would be a good case for such (much better than Grey Davis in California)
Bob Day says
We’re likely to see similar nonsense in the House after the next election: http://www.nytimes.com/cwire/2010/09/23/23climatewire-rep-issa-would-lead-climategate-probe-if-hou-44766.html
Bob Day says
We’re likely to see similar nonsense in the House after the next election:
Bryson Brown says
IANAL, but this strikes me as a clear case of malicious prosecution– at what point does Cuccinelli (and the State of Virginia) become vulnerable to a counter suit? I’d be happy to contribute to any legal action (assuming that it’s not illegal for a foreign citizen to do so).
Not that I would wish the results on the vast majority of decent American people, but I’d like to see some reaction that research scientists in the US, whether employed by domestic companies, foreign companies or Universities cannot be expected to and indeed will not conduct their work under threat of expensive legal harassment by ideologues, or demogogues or partisan politicians funded by money from questionable sources that would benefit from a witch hunt.
[Response: I understand and much agree with the sentiment. On the other hand, it should be remembered that people like what’s his name would like nothing more than to see their efforts result in a slow down of the science they don’t like. In my observation, Mike has been exemplary in not allowing that to happen, and this is an inspiration to all of us who are aware, I assure you.–Jim]
Daniel J. Andrews says
I’m surprised something similar hasn’t already been tried against those who publish papers on evolution or anything that demonstrates the great age of the earth. If the ice cores have a 500,000 year record then it must be fraud because the earth is not that old, right? Maybe Dr. Neil Shubin should be investigated for that expensive trip to the Arctic where he located Tiktaalik, the predicted fish and tetrapod intermediate.
The Dunning-Kruger is strong in this one(i.e. KC).
Larry Saltzman says
I think the problem is much deeper than the absurd charge of fraud the AG is going after. At another level this is a very sophisticated attempt to discredit science by promoting the notion that an error is the equivalent of fraud, whether the case is won in court or not.
It is obvious that in this case there isn’t even a “mistake”, but the mere perception of a mistake may do the necessary damage in the public mind. This holds scientists to the impossible standard of never being wrong or of never having made a legitimate mistake. It makes the very process of peer review the weapon to discredit science and scientists.
I fear that the high level of scientific illiteracy in the American public makes what the attorney general is doing likely to succeed. Everytime a legitimate scientist proposes a hypothesis tests it and another legitimate scientist finds a flaw in the data or analysis, they have the grounds for their nasty witch hunt, and a technique to confuse a gullible public.
This may not stop at climate change. Will they next go after biologists, archeologists, or paleoentologists to discredit evolution? No telling where this insanity stops.
Paul van Egmond says
Did Mann steal Cucinelli’s high school sweetheart or something? What inspires such vindictiveness in a man that he persists in this prosecution even though he cannot demonstrate any reasonable suspicion of fraud? This is legal(ized) harassment and a waste of both taxpayer money and government + legal resources.
From a wider perspective, it’s disconcerting to realize how leaky the separation of powers (trias politica) actually is. Climate science is politically charged enough as it is, it would be nice if the justice system would simply butt out and let people get some work done.
“I hope you don’t really feel that way.”
I feel torn. because, I agree that with eric that
“There are many great Universities in this country”
but as he continues:
“whatever the political climate may be!”
Ay, there’s the rub. As jyyh commented:
“the atmosphere Cuccinelli and his kind create makes those very hard to recommend”
Powerful, narrow minded, vicious, functionaries arise in all countries. They happen to be present here and now in the USA, and have fought research that harms their interests, and those of their masters. Couple this with the politicization of climate science, and the stranglehold exerted by fossil interests on the body politic, and perhaps my regrets become clearer. Today they came for the climatologists…
In any event, the lad is probably much smarter than i am, certainly smart enough to make up his own mind.
John E. Pearson says
1: Adam, I think that the Cuccinelli’s of the US mark the end of the era in which the USA was looked up to by virtually the entire world. Contrast Cuccinelli’s regard for science to that of the Chinese government, (as bad as they are !), but who celebrate the mean value theorem in downtown Beijing! http://en.wikipedia.org/wiki/File:Beijing-Mean-Value-Theorem-3733.jpg
Is there a legal defense fund for Mann and co? I would happily make a contribution.
Shifting the Overton window.
Although he is unlikely to succeed in his principle demand there is a risk that his actions will have some bad consequences, some of which he will have intended.
1. To revive the so called emailgate scandal and further divert attention from the poorly publicised Not Guilty verdicts that came out of all the enquiries.
2. To put climatologists on the defensive with regards to some of the arguments. For example the defence that his behaviour would be unacceptable even if the papers contained errors is of course valid but may be taken out of context to mean that once again the scientists are retreating.
3. To make people like McIntyre who is being courted by so much of the media, seem really reasonable and trustworthy on all matters, because of the distance between him and Cuccinelli.
3A. Perhaps the same but for more outrageous propagandists like Monckton or his supporter Corbyn.
Sooner or later there may be a court case, preferably on another issue; it could be risky and a waste of time, but also beneficial if conducted fairly and effectively. I am thinking of an analogy which may make the contrarians go up the wall, but it refers to anyone who plays fast and loose with any evidence. Deborah Lipstadt’s successful defence against libel and which rested on a legal proof of the historical facts.
Mann was not the PI on that grant. Albertson was. Yet Cuccinelli does not ask for e-mails from, to, or regarding Albertson. That does not make sense.
I’m formulating the message for my sign for the Jon Stewart “Rally to Restore Sanity” based on this discussion. Pithy suggestions welcomed.