May 27, 2016
Republican efforts to stifle any federal inquiry involving climate change should be considered "Exhibit A among the reasons why the Department of Justice should take a full and honest look at possible fraud in the fossil fuel industry's climate denial operation," leading progressive senators said Thursday in a letter to U.S. Attorney General Loretta Lynch.
The letter from Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Jeff Merkley (D-Ore.), and Sheldon Whitehouse (D-R.I.) provides a counterpoint to a separate missive (pdf) issued Wednesday by five Republican senators including Ted Cruz (R-Texas).
That letter called on Lynch to drop any federal investigations into whether oil companies like ExxonMobil committed fraud when they worked to downplay the science and impact of climate change. The Department of Justice (DOJ) has suggested it is considering such a probe.
Referring to such DOJ statements as well as subpoenas issued by state attorneys general, the GOP senators wrote:
These actions provide disturbing confirmation that government officials at all levels are threatening to wield the sword of law enforcement to silence debate on climate change. As you well know, initiating criminal prosecution for a private entity's opinions on climate change is a blatant violation of the First Amendment and an abuse of power that rises to the level of prosecutorial misconduct.
But the progressive senators disagreed with the Republicans' analysis, saying "the template for the Department investigating this question, of course, is the Department's own victory in its civil RICO lawsuit against the tobacco industry."
In fact, they wrote, "The Republican Senators' letter reprises the tobacco lawsuit's own early history of efforts from Congress to discourage or interfere with that lawsuit in order to protect the tobacco industry."
The Republican Senators' letter also reprises arguments made in the press against bringing the tobacco lawsuit, and made in court against that lawsuit: to wit, that the First Amendment should prevent the investigation or determine the litigation. This argument was soundly rejected by the Department, and then by Judge Kessler, and then by the United States D.C. Circuit Court of Appeals. It has always been and remains good law that fraud is not protected by the First Amendment. It would be a sorry world in which corporations engaged in fraud could pull the screen of the First Amendment over any investigation of their fraud.
Furthermore, the Sanders-Warren-Merkley-Whitehouse letter pointed out:
It is perhaps noteworthy in evaluating the merits of the Republican Senators' letter that their concern over investigations in this arena only appears when the subject is the fossil fuel industry. When the Attorney General of Virginia harassed a UVA climate scientist (to the point where the University went to the Virginia Supreme Court, which stopped the abuse), or when a Republican Senator called for criminal investigation of scientists in the so-called "ClimateGate Scandal" (which after six thorough investigations proved to be no scandal at all), or when Republican committee chairmen relentlessly pursue climate scientists with government subpoenas, there has not been a peep of objection from them.
That may be, the left-leaning senators mused, because the fossil fuel industry is "a dominant funder--if not the dominant funder--of the Republican Party."
Sanders and his colleagues note that the Republican senators' language is in line with
an outburst of editorial opinion against investigation that has significant earmarks of orchestration: the posts and editorials almost all confuse criminal and civil investigation; they almost all fail even to mention the tobacco lawsuit; they all have only one or two degrees of separation from the fossil fuel industry and its climate denial outlets; and they refuse to acknowledge the settled law that fraud is not protected by the First Amendment.
Indeed, House Republicans just last week sent letters to 17 attorneys general and eight environmental organizations--including 350.org, Greenpeace, and the Union of Concerned Scientists--claiming their #ExxonKnew effort amounted to a violation of climate deniers' First Amendment rights.
"If Exxon knew its work made climate change worse and hid this information for profit, it should be held accountable," Greenpeace executive director Annie Leonard said at the time, "not protected by elected officials who are there to represent the American people, not corporations."
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