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Competitive Enterprise Institute Subpoena: An Attack on Exxon & Us All

By The Editors      •      National Review

The Competitive Enterprise Institute, a libertarian-leaning think tank that has been a loud and trenchant critic of global-warming activism, is under subpoena by the attorney general of the U.S. Virgin Islands, who demands that the organization produce a decade’s worth of communication on the subject of global warming.

Intending no slight to our friends and CEI and the fine work they do (some of which NRO has published), this isn’t about libertarian exegesis of meteorological data, but rather an attempt to fry up a much, much bigger fish: Exxon. Exxon was, in the past, a substantial donor to CEI; presumably, communication with Exxon is no small part of what the subpoena hopes to uncover.

On March 29, a group of mainly Democratic attorneys general announced at a press conference (with former vice president and green-energy profiteer Al Gore in attendance) that they would seek to transform U.S. policy on climate change by “creatively” and “aggressively” deploying their prosecutorial powers. That, in and of itself, should raise an entire May Day parade’s worth of red flags: Prosecutors are in the business of enforcing the law, not rewriting it, and the open, naked promise to use prosecutorial powers as a political weapon is a prima facie abuse of office. In a self-respecting society, every one of those state attorneys general would have been impeached the next day. But this is the Age of Obama, not the Age of Self-Respect.

Claude Earl Walker, the attorney general of the U.S. Virgin Island, who promised a “transformational” use of his prosecutorial powers in the global-warming crusade, shortly thereafter issued a subpoena to Exxon, demanding private communication and other internal information as part of an investigation into the firm. Walker has not come even close to describing any crime committed by Exxon, much less a crime committed by Exxon in his jurisdiction, the U.S. Virgin Islands, where Exxon does no business, holds no assets, maintains no employees, and has no physical presence. Again, this is, in and of itself, a grotesque abuse of power.

But things get even a little weirder from there.

Exxon was not served the Virgin Islands subpoena by the authorities of the Virgin Islands, but by a private, Washington-based law firm, Cohen Milstein. You will not be shocked to learn that Cohen Milstein has a very large interest — millions and millions of dollars — in separate litigation being pursued against Exxon. You will be even less surprised to learn that the firm received a $15 million contingency-fee payment from Walker’s office in another matter, and we will be surprised still less if, as Exxon suggests, Cohen Milstein has a contingency interest in this new case against Exxon.

The case has unmistakable parallels to the shakedown of Chevron, in which a cabal of U.S.-based lawyers, left-wing activists with connections to the administrations of Barack Obama and Andrew Cuomo, working in conjunction with corrupt judges and officials in Ecuador attempted to extort billions of dollars from the energy giant. That case continued to advance until a federal judge threw it out as fraudulent — among other things, much of the evidence was manufactured — and recommended that a racketeering case be made against the defendants.

For Democrats, these cases represent a potential double dip: There is the possibility of winning a policy change by engaging in the political suppression of a hated adversary; short of that, there’s the possibility of a consolation prize in the form of a very large settlement from Exxon, which is the world’s most valuable company by market capitalization. And, with any luck, they might get both.

Regardless of one’s views on the global-warming debate, the proper venue for lawmaking is Congress and the state legislature, which are entrusted with that duty. It is true that fraud is not protected by the First Amendment, but no one — not Walker in the Virgin Islands or his Democratic colleagues pursuing similar cases in New York and California — has offered the tiniest bit of persuasive evidence that Exxon has committed fraud or done anything other than pursue a policy agenda at odds with that preferred by Democratic activists. The statute under which Walker is purporting to prosecute Exxon, the Criminally Influenced and Corrupt Organizations Act (CICO) contains quite specific criteria for the pursuit of a fraud case, including a prosecutable instance of actionable fraud within the past five years — a period of time not even covered by the CEI subpoena (which is for 1997–2007).

There is nothing even close to a plausible prosecutorial rationale in this case.

Using prosecutions to sort out policy differences is undiluted authoritarianism; delegating prosecutorial powers to a private law firm with a financial interest in seeing the target of a prosecution suffer is a gross violation of due process and legal norms; attempting to prosecute a firm for violations of Virgin Islands law when that firm does no business in the Virgin Islands and has no presence there is an obvious and indefensible abuse of office.

Unhappily for Exxon, the institution to which it might turn for relief — the U.S. Department of Justice — is, under the management of Loretta Lynch, dedicated to precisely this kind of banana-republic political persecution. Indeed, it is considering a case of its own.

What is at stake here isn’t Exxon’s share price. Exxon can afford to lose a lawsuit. What’s at stake here is nothing less than the rule of law and the maintenance of a free society, one in which people, think tanks, and businesses are not subject to prosecution for political activism on contentious public-policy questions. This is an attack not only on the First Amendment but on the entirety of the political process itself. It is a scandal, and voters in jurisdictions represented by members of the so-called Green 20 ought to be shocked and dismayed — and outraged — by what is being done in their name, with powers delegated by them to their attorneys general.