State AGs Call #ExxonKnew an ‘Unconstitutional Abuse of Investigative Power’

A federal judge in New York today refused to dismiss Exxon’s objection to investigations launched by New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey regarding what the company knew about climate change. The decision allows the company’s case to continue while the AGs work to adjust their arguments to account for a new venue.

The news comes as 11 other state AGs filed an amicus brief accusing Schneiderman and Healey of abusing their power and tarnishing the reputation of their offices.

In today’s hearing, Exxon’s lawyers accused the AGs of abusing their power in pursuit of a political agenda. “I’ve represented Exxon for 30 years,” said one lawyer. “I’ve never been involved in a case where an attorney general has abused their power in such an overt manner.” The lawyers also highlighted the mounting evidence that the AGs are working “hand in glove with plaintiffs and environmental groups to de-legitimize Exxon as a public player in this arena.”

Meanwhile, 11 Republican state AGs agreed with Exxon and filed an amicus brief in defense of the company on Wednesday, calling Schneiderman’s and Healey’s investigations an “unconstitutional abuse of investigative power.” The 11 AGs also accused Schneiderman and Healey of “embracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints. This is bad faith.”

Exxon’s lawyers cited the AGs’ letter in today’s hearing, observing that Schneiderman’s and Healey’s actions are eroding public confidence in the justice system:

“[Schneiderman and Healey] are saying that there is no limit to their power, and no matter how much evidence you get, federal courts should just rubber stamp their action. There needs to be a limit to any attorney general’s power.”

A lawyer at Steptoe & Johnson, Reid Weingarten, told the Daily Caller that this battle between the state AGs is unprecedented:

“The attorneys general move to gain access to Exxon’s documents caught me by surprise,” he said, adding that the amicus brief hashes out some legitimate and “non-trivial” First Amendment complaints.

“I don’t know of any” knock-out, drag down fights between AGs over political tactics and views, said Weingarten, who has practiced law for more than 40 years. “They are essentially accusing two of their own of wrong doing.”

The 11 AGs aren’t alone, however. When U.S. District Court Judge Ed Kinkeade transferred the case to New York last month, he made clear his concerns that the AGs could be engaging in a political witch-hunt:

“Was the action by the attorneys general attempting to squelch public discourse by a private company that may not toe the same line as these two attorneys general? Are the two attorneys general trying to further their political agendas by using the vast power of the government to silence the voices of all those who disagree with them?” (emphasis added)

Kinkeade also urged his New York counterpart to grant Exxon’s discovery request, writing, “Does this reluctance to be open suggest that the attorneys general are trying to hide something from the public? … Discovery regarding this refusal would seem in order.”

While Schneiderman likely expected to benefit from home-field advantage, the pressure against his anti-Exxon campaign is mounting. In addition to the serious concerns raised by his peers and the federal judge, Schneiderman has also received harsh criticism from legal experts and editorial boards from across the country.

Two professors at Babson College, located in Healey’s back yard just outside of Boston, recently published a paper examining the AGs’ attempt to prosecute Exxon over climate change. Their research concluded that “there is no probable cause to believe that an offense has been committed, and that the AGs’ investigations are misconceived.”

The judge’s decision today sets both sides up for a showdown later this year to decide whether the federal court can intervene in the state investigations.

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