Virginia Attorney General Ken Cuccinelli’s renewed ‘Civil Investigative Demand’ for documents relating to research at the University of Virginia by climate scientist Michael Mann is blatantly bogus in its purported interest in scientific integrity. But it is transparent in its willingness to use legal bullying to promote a rising radical right-wing politician.

See Part 2 of this post.

Earlier CSW post (contains links to other CSW posts on Cuccinelli’s witch hunt): Virginia judge tosses out Cuccinelli’s attempt to subpoena Michael Mann’s records (August 30, 2010)

On October 4, Virginia AG Cuccinelli reissued his civil subpoena (PDF) seeking to force the University of Virginia to turn over documents related to former UVa Prof. Michael Mann’s research.  Mann was at UVa from 1999-2005 and is now at Penn State. Cuccinelli’s first effort to subpoena Mann’s documents, including his e-mail correspondence with 39 other scientists, was tossed out by a Virginia judge in August. The University announced that it would continue to fight Cuccinelli’s efforts.

The story has been covered well by the Washington Post (“Climate research legal fight heats up”), RealClimate (“Cuccinelli goes fishing again”), Climate Progress (“Cuccineli attempts to criminalize all of climate science”), Mother Jones (“Cuccinelli’s attack on climate science continues”), Think Progress (“Cuccinelli Revives Witchhunt Against Climate Change Scientist”), and DeSmogBlog (“Cuccinelli revives witch hunt against Michael Mann and climate science”).

The Washington Post reported on October 5:

“University leaders are disappointed that the institution must continue to litigate with the Attorney General, but will 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,” said U-Va. spokeswoman Carol Wood in an e-mailed statement.

The new demand is written with an eye to satisfying Albemarle Circuit Court Judge Paul M. Peatross Jr., who in August ruled that Cuccinelli’s previous subpoena did not properly explain his rationale for thinking that fraud might have been committed.

Peatross also ruled that Cuccinelli had no right to documents about grants conducted using federal instead of state dollars. But he had indicated that Cuccinelli could rewrite the demand and issue it again.

Late last week, Cuccinelli also filed a notice with the court that he plans to appeal the judge’s ruling….

The CID gives the university until Oct. 29 to comply, but the Board of Visitors appears to have already decided to resist.

Faculty at the school and academics across the country have said that acceding to Cuccinelli’s inquiry would have a chilling effect on academic freedom.

The Post quoted Michael Mann:

“I find it extremely disturbing that Mr. Cuccinelli has sought to continue to abuse his power as the attorney general of Virginia in this way, in the process smearing the University of Virginia and me and other climate scientists,” Mann said. “The people of Virginia need to be extremely disturbed that he is using their tax dollars to pursue this partisan witch hunt.”

The climate science blog RealClimate, on which Michael Mann is one of the contributors, did a group post on October 4 that helped to clarify that Cuccinelli is clearly more interested in intimidation than in climate science or scientific integrity. An excerpt:

…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….

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.

Also you should read Joe Romm’s post on Climate Progress.

See his discussion of Attachment B on pages 17-28 of the Cuccinelli document, including the bizarre suggestion that Mann is guilty of fraud for using the word “community” as “post-normal science jargon” in order to mislead grant reviewers. Roll over, Orwell.

The Washington Post says in an October 6 editorial:

Ken Cuccinelli seems determined to embarrass Virginia

…Slapped down once by a Virginia judge in his effort to investigate Mr. Mann, the attorney general is trying again with a screed that rehashes a lot of the old arguments about Mr. Mann’s findings, including the complaint about his famous “hockey-stick” graph in 1998, which shows a spike in world temperature during the 20th century….

What’s particularly astonishing, though, is that Mr. Cuccinelli’s legal case against Mr. Mann seems unrelated to any of the controversial research the attorney general spends so much time attacking. Mr. Cuccinelli is supposedly investigating whether Mr. Mann committed fraud when the scientist applied for and received a state-funded research grant — to study what Mr. Mann describes as “the interaction of the land, atmosphere and vegetation in the African savannah.” The topic “has nothing to do with climate change or paleoclimate,” Mann says. The attorney general appears to argue that, since Mr. Mann listed his controversial papers on his curriculum vitae when he and two other scientists applied for the savannah research grant, he may have committed some kind of fraud.

The attorney general’s logic is so tenuous as to leave only one plausible explanation: that he is on a fishing expedition designed to intimidate and suppress honest research and the free exchange of ideas upon which science and academia both depend — all because he does not like what science says about climate change….

There’s more to say about this – in a follow-up post.

Earlier CSW post:

Interview with Michael Mann on the Penn State Final Report and the war on climate scientists (July 1, 2010)

Also see the Washington Post editorial on October 30, 2009 (“Mr. Cuccinelli’s bigotry”).