Timeline: Legal Harassment of Climate Scientist Michael Mann
Starting in April 2010, climate scientist Michael Mann has been subjected to a campaign of harassment, first by Virginia Attorney General Ken Cuccinelli, who has filed subpoenas demanding that the University of Virginia produce documents related to Mann’s time there, and later by the American Tradition Institute (ATI), a free-market think tank, which has sought identical materials through a Freedom of Information Act (FOIA) request.
UCS has assembled the following timeline of events, editorial comments and statements from scientists, academics and other groups related to these attacks.
The Supreme Court of Virginia unanimously affirms the earlier Circuit Court ruling in the University's favor.
The Superior Court of the District of Columbia holds a hearing on Michael Mann’s lawsuit against the National Review and Competitive Enterprise Institute. Each of the parties has filed their motions, exhibits and responses.
Michael Mann sues National Review and the Competitive Enterprise Institute over their statements.
Prince William County Circuit Court in Virginia rules in the University's favor in the ATI suit, finding that the documents ATI was demanding are protected from disclosure by an exemption covering scholarly communication in Virginia's public records law. (See our blog post.)
An employee of the Competitive Enterprise Institute, a fossil-fuel-industry funded free market think tank, publishes a blog post accusing Mann of data manipulation and comparing him to convicted child molester Jerry Sandusky. Later, the National Review, a pro-free market publisher, references the post. (See our blog post.)
The Virginia Supreme Court rules in the University of Virginia's favor in the Mann case, with the majority finding that the university is not a "person" as defined in the Fraud Against Taxpayers Act (FATA), and therefore the Attorney General has no authority under the Act to make civil investigative demands (CIDs) of the university.
The Climate Science Legal Defense Fund officially launches and forms a partnership with Public Employees for Environmental Responsibility. The fund will educate the scientific community about their rights and responsibilities and provide financial support and legal counsel to climate scientists facing litigation.
Attorney General Ken Cuccinelli and University of Virginia lawyers present oral arguments about the ability of the attorney general to subpoena Michael Mann’s private correspondence.
The Supreme Court of Virginia schedules oral argument in Kenneth T. Cuccinelli, II, in his capacity as Attorney General of Virginia v. Rector and Visitors of the University of Virginia for January 12, 2012.
Virginia Circuit Court Judge Gaylord Finch grants Mann standing to challenge ATI's attempts to access his private correspondence. The judge voids the flawed agreement between UVA and ATI and instructs the two parties to agree to a neutral arbiter who will determine which emails should be disclosed. UVA and ATI are given until December 20 to come to an agreement.
The American Tradition Institute files a series of documents ahead of a November 1 hearing, including their opposition to amending the protective order, affidavits from attorneys Chris Horner and David Schnare, and supporting exhibits.
UVA files a petition with the court to alter the protective order, agreeing that it would be inappropriate to disclose exempt emails to ATI. In a supporting memorandum and a more extensive affidavit, UVA attorney Richard Kast outlines two concerns: first, regarding statements that ATI attorneys made on their website and in the press, and second, regarding how ATI attorney David Schnare represented his employment with the United States Environmental Protection Agency.
The American Association of University Professors (AAUP) files an amicus letter in support of Mann's motion to intervene in the ATI case, asserting that the University of Virginia's agreement to the May 24 protective order "does not adequately balance" the interests of freedom of information and employee privacy.
The judge hearing the ATI FOIA case agrees to hear arguments from Mann regarding his right to intervene in the ATI/UVA agreement. The hearing will be held on November 1.
The American Constitution Society for Law and Policy publishes an issue brief by AAUP Senior Counsel Rachel Levinson-Waldman regarding the open records case, "Academic Freedom and the Public's Right to Know: How to Counter the Chilling Effect of FOIA Requests on Scholarship."
Michael Mann files a motion to intervene in the ATI case and objects to a court agreement that would allow ATI to review scientists' private correspondence. The court schedules a hearing for September 16 to consider the motion.
The National Science Foundation (NSF) releases a document closing its inquiry into allegations against Mann, finding no evidence of research misconduct.
UCS, the American Association of University Professors, American Geophysical Union and Climate Science Watch send a letter to University of Virginia President Teresa A. Sullivan urging the university to alter the May 24 protective order (see below). The groups argue that the university is slated to unnecessarily disclose exempt documents, including private correspondence among scientists, to ATI.
The Washington Post publishes an editorial condemning the ATI VFOIA request and urging UVA to use every exemption available.
The American Tradition Institute and University of Virginia enter into a protective order, which lays out how the university should handle documents, including private correspondence among scientists, related to ATI’s freedom of information act request.
UCS and three other organizations (the American Association of University Professors, the American Civil Liberties Union of Virginia, and the Thomas Jefferson Center for the Protection of Free Expression) file an amicus brief with the Supreme Court of Virginia opposing the Attorney General’s appeal.
UVA President Teresa A. Sullivan responds to April 14 coalition letter regarding Freedom of Information Act requests, stating that the University will follow the law while committing to the interests of faculty in academic freedom and scholarship.
Twelve public interest organizations, including UCS, send a letter to University of Virginia (UVA) President Teresa A. Sullivan urging the university to “[balance] the interests in public disclosure against the public interest in academic freedom” in its response to a Virginia Freedom of Information Act (VFOIA) request related to Mann’s work. UCS follows the letter with a statement that expands on the letter's message.
The Supreme Court of Virginia agrees to hear the attorney general’s appeal.
The University of Virginia begins negotiations with the American Tradition Institute over the time, scope, and payment for processing their January 6th FOIA request.
The University of Virginia responds to the attorney general's appeal to the Virginia Supreme Court.
The American Tradition Institute, a free-market think tank that routinely attacks climate scientists and refuses to accept the scientific consensus on climate change, submits a Freedom of Information Act Request to the University of Virginia for the same personal correspondence that Attorney General Cuccinelli is seeking through his subpoenas. The Washington Post notes that the American Tradition Institute has affiliations with the Competitive Enterprise Institute and Exxon Mobil, both of which have sown doubt about climate science in the past.
Attorney General Cuccinelli submits a brief to the Virginia Supreme Court appealing the decision of a circuit court judge who threw out the original subpoenas for lack of merit.
In a court filing responding to the latest subpoena, UVA argues that the attorney general's investigation is “an unprecedented and improper governmental intrusion into ongoing scientific research.” The filing points out that Cuccinelli’s latest demands repeat the same arguments rejected by the county court in August. UVA also asks the court to place the case on hold to conserve UVa and state resources, while the Virginia Supreme Court resolves the attorney general’s appeal of the August decision.
UCS subsequently releases a statement asserting that the attorney general is "abusing his power to fight a public relations war against scientific findings" and expressing dismay at the ongoing waste of taxpayer and university funds.
Two dozen science graduate students protest Cuccinelli’s speech at UVA.
The Washington Post publishes an editorial which writes that “the damage to Virginia's reputation, and to its universities' ability to attract and retain top-notch faculty and students, will not be easily undone.” In another editorial, the Richmond Times-Dispatch warns that Cuccinelli is setting a dangerous precedent, “future attorneys general hoping to score points with their political base will have less compunction about investigating "fraud" by academics whose work they don't like.” The Virginia Pilot editorial board criticizes the financial cost of Cuccinelli’s investigation. The Washington Post's Tom Toles takes a humorous look at the investigation with his editorial cartoon about Cuccinelli.
UCS releases a statement condemning Cuccinelli’s continued, politically driven, attack on Mann and UVA. The Washington Post reports that, in addition to filing a new CID, Cuccinelli intends to appeal the current decision to the Virginia state Supreme Court. UVA says it has already spent more than $350,000 in legal fees and pledges to “continue to stand for the principles the university has articulated since the CIDs were first put forward in April -- and to support academic communities here and elsewhere.”
Cuccinelli's office issues a new Civil Investigative Demand to the University of Virginia that complies with the judge's ruling yet differs little from his original request. The attorney general asks for emails, handwritten notes, and other documents related to the work of Dr. Michael Mann yet again offers no evidence of misconduct.
Virginia judge dismisses Cuccinelli's investigation. In his ruling the judge wrote "The nature of the conduct is not stated so that any reasonable person could glean what Dr. Mann did to violate the statute." UCS issues a statement calling the decision a "victory for scientific discovery."
UCS, the American Association of University Professors, and the American Civil Liberties Union of Virginia issue statements regarding the brief filed on August 17.
UCS joins with the American Association of University Professors, the American Civil Liberties Union of Virginia Foundation, and the Thomas Jefferson Center for the Protection of Free Expression in filing an amicus brief with the court that is supportive of UVA.
UCS releases analysis of claims made in the attorney general’s July 13 court filing, noting a dozen of its most flawed errors.
Richmond Times-Dispatch columnist, Barton Hinkle, writes an op-ed further discussing the dangerous precedent that the attorney general’s actions could set, arguing that the investigation hardly falls under the original intent of the Fraud Against Taxpayers Act.
UVA files a response brief, asking the court to set aside the subpoenas issued to the university. UVA argues that the attorney general’s filings undermine his own case, stating that the Attorney General issued the subpoena simply to challenge a professor’s peer reviewed data.
The attorney general files a brief in the Albemarle County Circuit Court, arguing that Mann and his colleagues have manipulated scientific data for years to back the regulation of carbon dioxide emissions. The brief claims that UVA has failed to demonstrate that the subpoena violates any legal rights. The brief also complains about the influence of the Intergovernmental Panel on Climate Change on the public discussion of climate change science.
The University of East Anglia’s (UEA) final independent inquiry, headed by Sir Muir Russel, finds that the “rigour and honesty” of the scientists whose emails were stolen “are not in doubt.” In December of 2009, the university appointed the former Scottish civil servant to lead the independent Climate Change Email Review of the controversy associated with the Climate Research Unit (CRU). The dispute around CRU's hacked emails has inspired a number of recent attacks against climate science and researchers. While the report does criticize UEA’s inadequacy in addressing freedom of information requests, overall the findings further dismiss the "Climategate" scandal and any justification for Attorney General Cuccinelli’s investigation.
In an interview with the Charlottesville Daily Progress, Brian Gottstein, Cuccinelli’s director of communication says their office does not intend to respond to UCS’s criticism of their error-riddled court filing. Brian Gottstein tells the newspaper by email, “We will address any arguments that the University of Virginia has posed when we file our court brief on July 13. We do not intend to address the arguments of other parties.”
Penn State University releases the final part of its investigation into charges against Mann, clearing him of misconduct.
In an interview, Cuccinelli spokesperson Brian Gottstein indicates that the attorney general's office was unfazed by the investigation. He says, “We will address any arguments that the University of Virginia has posed when we file our court brief on July 13. We do not intend to address issues outside of the courtroom.”
UVA responds to Cuccinelli's June 11 filing. The university argues that Cuccinelli's requests for information “did not identify any legitimate reason to believe that a [Fraud Against Taxpayers Act] violation occurred.”
Cuccinelli files a response to UVA, in which he points to emails stolen from Mann and other researchers to justify his investigation. According to a UCS analysis, the response makes significant mistakes, attributing research another scientist conducted to Mann and repeating debunked claims about stolen emails. In one instance, the response mischaracterizes a criticism Mann made about a blogger's work as a criticism of Mann's own research.
The University of Virginia petitions a Virginia circuit court to set aside the Cuccinelli’s civil investigative demand. UCS commends UVA authorities for standing up for scientists and academic freedom.
UCS releases a letter (pdf) from more than 800 Virginia scientists and academic leaders—including nearly 300 individuals from UVA—asking the attorney general to stop the investigation.
In an article in the Daily Progress, Cuccinelli offers a confusing and dismissive response to his critics: “The same legal standards for fraud apply to the academic setting that apply elsewhere. The same rule of law, the same objective fact-finding process will take place.” Later in the article, he is quoted saying, "They need not worry, but I doubt anybody screaming about it will take that from me. We’re going to work our way through the process in a professional way.”
The American Association for the Advancement of Science Board of Directors issues a statement (pdf) criticizing Cuccinelli's investigation. They write, "Mr. Cuccinelli’s investigation, unless based on a much more substantial body of evidence than is apparent, could inappropriately inhibit the free exchange of scientific findings and ideas and thus limit the progress of science."
Over thirty professors from the University of Virginia Law School send a letter (pdf) to the Rector and Visitors of the University of Virginia "affirming the importance of academic freedom" and urging them to contest the Civil Investigative Demand (CID) "to the fullest extent possible." The professors write that, "[t]he CID is an effective tool of intimidation because it appears not to require the Attorney General to make any factual showing of the need for its issuance." The professors continue: "There appears to be a serious legal basis for challenging the constitutionality of the Attorney General's CID."
The nonpartisan civil liberties organization, Foundation for Individual Rights in Education (FIRE) write a letter (pdf) to Cuccinelli asking him to rescind his Civil Investigative Demand and condemning "the threat to academic freedom presented by this investigation." FIRE warns: "This investigation provides a dangerous opening for politically motivated attacks on the academy from elected officials. Once the precedent of using FATA [Virginia's Fraud Against Taxpayers Act] to investigate academic research has been set, no professor studying anything controversial at a Virginia public institution of higher education will be safe."
In an unusual move, the American Meteorological Society and University Corporation for Atmospheric Research write a letter to the president of UVA asking him to “uphold the tenets of academic freedom.”
UVA announces it has hired an outside law firm to handle the Cuccinelli matter, fueling speculation that the university intends to fight the subpoena.
Washington Post editorial cartoonist Tom Toles takes aim at Cuccinelli’s investigation.
The Washington Post urges the UVA to fight the subpoena. “Ken Cuccinelli II has decided to misuse state funds in his personal war against climate science,” the editors write. “But that doesn't mean anyone else should cooperate.”
A UVA spokesperson releases a statement implying the university would comply with the order and saying it has received a 60-day extension to respond.
Rep. Jim Moran (D-Virginia) sends a letter (doc) to Cuccinelli asking him to drop his investigation. He writes, “One can only conclude that your investigation is motivated by the desire to silence those with whom you disagree under the threat of having their grants, or lives, scrutinized under the guise of government auditing.”
Nature magazine publishes an editorial condemning the investigation. “Given the lack of any evidence of wrongdoing, it's hard to see Cuccinelli's subpoena…as anything more than an idealogically motivated inquisition that harasses and intimidates climate scientists.”
In a tongue-in-cheek letter published in the Charlottesville Daily Progress, University of Virginia microbiologist Martin Schwartz invites the attorney general to pay him a visit. “I’ve got a pile of lab notebooks that contain results someone might disagree with,” he writes. “Could your office help me check the calculations?”
Virginia state Senator Donald McEachin (D-Henrico) issues a statement condemning Cuccinelli’s investigation and promising to introduce legislation to prevent CIDs from being used in this way. He writes, “This is not only ludicrous and frivolous, wasting more taxpayer dollars and trampling on academic freedom, but the Attorney General has deprived Mr. Mann of his constitutional rights.”
The Fredericksburg Free Lance-Star editorial board writes, “…even if Mr. Cuccinelli thinks that academic scientists are ‘all in it together,’ it is wrong-headed and dangerous for him to go slashing through the ivy…Mr. Cuccinelli may be spoiling for a fight. But he should withdraw from this one, lest all Virginians rue the day he picked it.”
19 Old Dominion University professors write a letter to Cuccinelli condemning his investigation. They write that he should “cease and desist from this and further 'witch hunts' driven by partisan political agendas that waste valuable state resources in a difficult economy.”
The Washington Post condemns the attack. “We hope that Gov. Robert F. McDonnell (R) and the University of Virginia have the spine to repudiate Mr. Cuccinelli's abuse of the legal code,” write the editors. “If they do not, the quality of Virginia's universities will suffer for years to come.”
On WAMU’s Kojo Namdi Show, Cuccinelli again claims that he is not targeting scientific conclusions, claiming his investigation is “directed at the expenditure of dollars. Whether he does a good job, bad job or I don't like the outcome—and I think everybody already knows his position on some of this is one that I question. But that is not what that's about."”
The UVA initially states that it intends to comply with the subpoena to the extent required by law.
In a letter to UVA, the American Civil Liberties Union of Virginia and American Association for University Professors ask the UVA to “use every legal avenue at [their] disposal to resist providing the information demanded in the CID.” They write, “If scientists refrain from novel methodological approaches because they may be characterized as ‘fraudulent,’ then scientific research, and, by extension, society as a whole, will be the loser.”
The University of Virginia Faculty Senate issues a statement (pdf) writing, “Such actions directly threaten academic freedom and, thus, our ability to generate the knowledge upon which informed public policy relies.”
Governor Bob McDonald states that he cannot recall issuing a similar demand when he served as attorney general and that he has not spoken to Cuccinelli about the subpoena.
In an interview with TV station WSLS, Cuccinelli says he thinks the “jury is out” on whether or not human activity is driving global warming, but also says that his office is not “targeting scientific conclusions.”
In an article for Slate.com, legal journalist Dhalia Lithwick concludes, “There are 100 vital ways for Ken Cuccinelli to spend his time and the Commonwealth's taxpayer dollars. Litigating science isn't one of them.”
Cuccinelli invokes debunked claims about emails from climate scientists to justify his subpoena to the Washington Post.
The Charlottesville independent weekly newspaper The Hook, breaks the news of the subpoena.
Cuccinelli's office serves the University of Virginia with a Civil Investigative Demand, essentially subpoenaing documents related to Mann's grants when he was on the UVA faculty between 1999 and 2005.
Dr. Mann ends his work at the University of Virginia and becomes an Associate Professor at Penn State University in the Department of Meteorology.
The Virginia Fraud Against Taxpayers Act goes into effect.
The Virginia state governor signs the Fraud Against Taxpayers Act.
Dr. Michael Mann works as a co-investigator on the project "Resolving the Scale-wise Sensitivities in the Dynamical Coupling Between Climate and the Biosphere," funded by an internal grant award of $214,700 by the University of Virginia-Fund for Excellence in Science and Technology (FEST). All other projects of Dr. Mann's at the University of Virginia during this time period are funded by federal grants.
Dr. Michael Mann begins work as an Assistant Professor at the University of Virginia in the Department of Environmental Sciences.