June 24, 2016
EDDIE BERNICE JOHNSON
RANKING MEMBER JOHNSON LETTER ON THE MAJORITY`S ILLEGITIMATE
INVESTIGATION INTO STATE AND TERRITORIAL ATTORNEYS GENERAL AND
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For Immediate Release
Ranking Member Johnson Letter on the Majority`s Illegitimate Investigation into State and Territorial Attorneys General and Environmental Groups
Contact: (202) 225-6375 Kristin Kopshever - Kristin.Kopshever@mail.house.gov Rebekah Eskandani - Rebekah.Eskandani@mail.house.gov
June 24, 2016
(Washington, DC) - Ranking Member Eddie Bernice Johnson (D-TX) sent a letter to Chairman Smith in response to his second letter to 17 state and territorial attorneys general and eight environmental organizations demanding documents related to potential fraud investigations into the fossil fuel industry regarding climate change.
You can find all of the relevant letters relating to this matter here, including response letters from the AGs and the environmental groups and letters to the Chairman from other Members of Congress.
Please visit our website: http://democrats.science.house.gov
The Honorable Lamar Smith Chairman Committee on Science, Space, and Technology 2321 Rayburn House Office Building Washington, DC 20515
Dear Chairman Smith,
On May 18, 2016, you wrote to 17 state and territorial attorneys general and 8 non-governmental organizations (NGOs) demanding documents related to possible investigations into fossil fuel industry fraud regarding climate change. On June 17, 2016, after receiving what were presumably unsatisfactory responses from these attorneys general and NGOs, you sent a second round of demands to these same groups. These demands are an illegitimate exercise of Congressional oversight power, and I urge you to immediately cease this abuse of authority.
In a Congress in which the Committee on Science, Space, and Technology`s oversight powers have been repeatedly abused, this latest action stands apart. In addition to mischaracterizing innumerable facts, laws, and legal precedents surrounding this situation, the May 18 and June 17 letters have now led the Committee on Science, Space, and Technology to the precipice of a Constitutional crisis. Never in the history of this formerly esteemed Committee has oversight been carried out with such open disregard for truth, fairness, and the rule of law.
The state and territorial attorneys general, representatives for the targeted NGOs, and 43 Democratic Members of Congress have already written to you to patiently explain the illegitimacy of your ``investigation.`` Since you have apparently rejected their responses, I will endeavor to highlight once more the factual and legal shortcomings of your demand letters.
The Majority`s Letters Mischaracterize State Attorney General Actions
Both your May 18 and June 17 letters refer to a ``coordinated attempt to attack First Amendment rights of American citizens and their ability to fund and conduct scientific research free from intimidation and threats of prosecution. . .`` In laying out your factual case, you state:
This sequence of events - from the 2012 workshop to develop strategies to enlist the help of attorneys general to secure documents, to the 2016 subpoenas issued by you and other members of the Green 20 - raises serious questions about the impartiality and independence of current investigations by the attorneys general. Your office - funded with taxpayer dollars - is using legal actions and investigative tactics taken in close coordination with certain special interest groups and trial attorneys may rise to the level of an abuse of prosecutorial discretion. Further, such actions call into question the integrity of your office.
Ignoring for a moment the grossly inappropriate and unsubstantiated innuendo contained in these statements, I would like to highlight the factual deficiencies in your claims.
First of all, it is important to accurately report on the actions of the state and territorial attorneys general. As the New York Attorney General`s Office noted in their response to your May 18 letter, they are investigating ``whether ExxonMobil Corporation violated New York`s securities, business and consumer fraud laws by making false or misleading statements to investors and consumers relating to climate change driven risks and their impact on Exxon`s business.`` In other words, these state attorneys general are investigating potential fraud under state law.
The Commonwealth of Massachusetts Office of the Attorney General laid out the factual basis for these fraud investigations in some detail in its June 2, 2016, response letter, stating:
Publicly available Exxon documents establish that at least by July 1977, Exxon`s own scientists informed Exxon management that the release of carbon dioxide from burning fossil fuels was causing global temperatures to increase, a situation that would, the scientists warned Exxon management, give rise to ``the need for hard decisions regarding changes in energy strategies.`` Publicly available Exxon documents also confirm that Exxon`s scientists were, in the early 1980s, predicting significant increases in global temperature as a result of the combustion of fossil fuels, and that a 2 to 3 degree Celsius increase could lead to melting of polar ice, rising sea levels and ``redistribution of rainfall,`` ``accelerated growth of pests and weeds,`` ``detrimental health effects,`` and ``population migration.`` Exxon`s scientists counseled Exxon management that it would be possible to ``avoid the problem by sharply curtailing the use of fossil fuels.`` One Exxon scientist warned in no uncertain terms that it was ``distinctly possible`` that the effects of climate change over time will ``indeed be catastrophic (at least for a substantial fraction of the earth`s population).``
Despite Exxon`s early understanding of the science of climate change and the threats posed by climate change to human populations and global ecosystems, other publically available documents suggest that Exxon may have participated in later self- interested efforts to mislead the public, including investors and consumers, with respect to the impacts of climate change in order to defeat governmental policy measures designed to address the threat of climate change.
These accusations were widely reported in the press in 2015. Moreover, these accusations should have come as no surprise to you or your staff as they formed the same factual basis that compelled 20 scientists to write to the U.S. Attorney General to suggest that Racketeer Influenced and Corrupt Organizations Act (RICO) investigations might be warranted against fossil fuels companies that potentially knowingly defrauded the American public. You previously instigated an investigation against one of those scientists for exercising his constitutionally protected First Amendment right to petition the government. This is the first of many instances where the irony of your current accusations becomes evident.
Multiple state attorneys general also pointed out the legal fallacy of your accusations of First Amendment violations. For instance, the Oregon Attorney General`s Office pointed out that:
[y]our letter also incorrectly accuses this office of investigating entities based on their speech or beliefs concerning climate change. Please be advised this office will not be dissuaded from considering whether state laws, including consumer protections laws, may provide redress against knowingly false commercial speech concerning global warming. The First Amendment simply does not protect fraudulent speech. Illinois v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003); Donaldson v. Read Magazine, Inc., 333 U.S. 178, 190 (1948) (``This government power [to protect people against fraud] has always been recognized in this country and is firmly established.``).
The notion that fraudulent speech is not protected by the U.S. Constitution would seem to be beyond dispute. Nonetheless, despite the state attorneys generals pointing very specifically to the factual and legal deficiencies of your accusations, your June 17, 2016, letters persist in leveling these baseless accusations against the attorneys general, stating:
This statement suggests that your office, as an arm of state government, will decide what science is valid and what science is invalid. In essence, you are saying that if your office disagrees with whether fossil fuel companies` scientists were conducting and using the ``best science,`` the corporation could be held liable for fraud. Not only does the possibility exist that such action could have a chilling effect on scientists performing federally funded research, but it also could infringe on the civil rights of scientists who become targets of these inquiries. Your actions violate the scientists` First Amendment rights. Congress has a duty to investigate your efforts to criminalize scientific dissent.
Nothing in that assertion bears any relationship to the statements of the various state attorneys general. These state investigations have nothing to do with deciding ``what science is valid and what science is invalid.`` The investigations, as multiple attorneys general pointed out, are concerned with whether certain fossil fuel companies believed or knew one set of facts, and yet publically disseminated another in order to enrich themselves at others expense. These allegations constitute textbook fraud.
These investigations have a well-known precedent. In the 1990s, various state attorneys general sued tobacco companies for the state-borne healthcare costs associated with tobacco use. One of the bases for the claims was that the tobacco industry engaged in a conspiracy to conceal and misrepresent ``the addictive and harmful nature of tobacco/nicotine.`` These suits resulted in the Master Settlement Agreement in 1998, where the four largest tobacco companies settled all pending state claims related to the healthcare costs related to tobacco. The Federal Government soon followed suit. In 1999 the U.S. Department of Justice brought RICO Act actions against the largest tobacco companies. The parallels of that case with the current state attorneys general investigations cannot be overstated. In U.S. v. Philip Morris, the government alleged that the tobacco industry internally knew of the health risks of their products for decades, yet engaged in a well-financed conspiracy to deceive the American public about the health effects of tobacco. This included financing scientific studies questioning the links between tobacco and health problems and the creation of front organizations to hide links to the tobacco financing. The U.S. government won the case, and the decision was upheld on appeal.
I have repeatedly criticized your tendency to rely upon former tobacco industry-funded scientists, consultants, and public relations firms in past Committee investigations and hearings. Given your past reliance on such ``experts``, it`s perhaps unsurprising that you are now questioning these legitimate state attorneys general investigations of potential fraudulent actions against the American people.
The Majority`s Investigation of State Attorneys General is Unconstitutional
A Congressional document demand to a state attorney general is exceptionally unusual. Such a demand from the Science Committee is unheard of.
State attorney generals are elected officials of sovereign state governments. They are not employees of the Federal Government, nor are they subject to federal oversight or control, including by the United States Congress.
You note in your June 17 letter that Congress`s oversight powers are well established and broad, citing such authorities as the ``U.S. Constitution, Art. 1; McGrain v. Daugherty, 273 U.S. 135 (1927) (Congress was investigating the U.S. Dep`t of Justice`s handling of the Teapot Dome scandal); Eastland v. United States Servicemen`s Fund, 421 U.S. 491 (1975)(U.S. Senate committee investigating the activities of U.S. Servicemen`s Fund and their effect on the morale of members of the Armed Services.)`` The existence of Congress`s oversight powers goes without saying, and is a well-established principle of law. You go on to make an important point about the source of Congressional oversight power, stating:
Hand in hand with Congress` legislative power is its power to investigate. Indeed, in 1975, when commenting on Congress` investigative power, the Supreme Court stated that the ``scope of its power of inquiry. . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.
This analysis is particularly relevant to the ``investigation`` at hand. Congress`s broad oversight powers are directly tied to our power to legislate. Thus, by the authority you have relied upon in your own letters, Congress has no legal oversight authority over issues or actions that fall outside Congress`s legislative authority.
As nearly every state attorney general who responded to your May 18 letters indicated, state government law enforcement officials acting in their official capacities are not within Congress` legislative control. For instance, in its May 27, 2016, response to your demand letter, the California Attorney General`s Office noted:
[w]e do not believe it is within the jurisdiction of Congress to demand documents from a state law enforcement official such as the California Attorney General. Although Congress` investigative jurisdiction is broad, that is because it tracks Congress` power to legislate and appropriate concerning federal matters. But the power to investigate does not extend beyond those matters. (See, e.g. Barenblatt v. U.S. (1959) 360 U.S. 109, 111 [``Congress may only investigate into those areas in which it may potentially legislate or appropriate``].) Investigations and prosecutions of state law enforcement actions by state attorneys general are not federal matters. To the contrary, under the Constitution and laws of the United States, such activities partake of police powers reserved to the states, and are not subject to federal interference. (See, e.g., New York v. U.S. (1992) 505 U.S. 144, 162 [``the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress` instructions``].)
As a reminder, the Tenth Amendment to the U.S. Constitution reads as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Implicit in the powers reserved to the states under the Tenth Amendment are state police powers. In case after case, the courts have struck down Congressional attempts to regulate state government activities, including exercise of their police powers. It is clear that Congress has no legislative authority to dictate the actions of state attorneys general.
Even if Congress did have some inroad into regulation of state police powers, such a legislative authority would not rest with the Committee on Science, Space, and Technology. Our oversight jurisdiction (which is broader than our actual legislative jurisdiction) encompasses ``laws, programs, and Government activities relating to nonmilitary research and development.`` Note that the capitalization of the word ``Government`` gives the word the meaning ``Federal Government.`` Nowhere in our jurisdiction - legislative or oversight - can one find justification for our Committee`s oversight of state police powers. The elected officials that serve as state attorney generals are answerable to their respective constituents and the courts, but not to the U.S. Congress. As my colleagues from Virginia, the District of Columbia, and Maryland pointed out:
States` rights long being a central pillar of conservative philosophy, the Letter`s effort to meddle directly in the self- governance and prosecutorial discretion of 17 U.S. state and territories is not lacking for irony.
The Majority`s Investigation of NGOs` Exercise of Free Speech is Unconstitutional
The First Amendment to the U.S. Constitution reads, in whole:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
While the First Amendment prohibits government interference with the free speech rights of individuals, that prohibition is not absolute. One relevant example is that fraudulent speech is not protected by the First Amendment. Moreover, the First amendment does not provide an absolute shield against legitimate Congressional oversight. In that regard, you state in your June 17 letter to the various NGOs:
In Barenblatt v. United States, the Supreme Court stated ``where the First Amendment rights are asserted to bar government interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.`` Moreover, when balancing the interests of the parties in Watkins v. United States, the Court held ``the critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosure from an unwilling witness.`` These cases are important precisely because they provide examples of congressional investigations - sustained by the Supreme Court - involving organizations similar to yours. The parties being investigated in the cases noted above are no different than the recipients of the Science Committee`s May 18 letter.
Since this is the only real legal authority you cite as justification for investigating Americans` constitutionally protected speech, I think it is worth scrutinizing.
First, I would like to point out the context of these cases. Both of these cases involved the notorious House Un-American Activities Committee (HUAC), and investigations that committee conducted into the private lives of American citizens. If ever there was an example of a ``witch hunt`` in the history of the United States Congress, the HUAC investigations best fit the bill. For that reason, it is more than a little disconcerting that you think those cases` fact patterns so closely resemble your own investigation.
I would also like to point to an error in your statement. You state that both of these cases are important because ``they provide examples of congressional investigations - sustained by the Supreme Court - involving organizations similar to yours.`` This statement is false. In Watkins v. United States, the Supreme Court overturned a conviction under 2 U.S.C. 192 against an individual who refused to provide certain testimony to HUAC. The Watkins Court held that the conviction was invalid under the Due Process Clause of the Fifth Amendment.
Rather than supporting the legal grounds of your investigation, the Watkins decision is actually an indictment against it. The Watkins court noted that:
The Court recognized the restraints of the Bill of Rights upon congressional investigations in United States v. Rumely, 345 U.S. 41. . . It was concluded that, when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter.
The Watkins Court went on to state:
Kilbourn v. Thompson teaches that such an investigation into individual affairs is invalid if unrelated to any legislative purpose. That is beyond the powers conferred upon the Congress in the Constitution. United States v. Rumely makes it plain that the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights.
As I noted earlier, it is clear that our Committee doesn`t even have a semblance of a legislative purpose that would justify this investigation. It is inconceivable that our Committee, based on our House Rule X jurisdiction, could legislate on any topic related to state law enforcement, private speech, private citizens exercising their First Amendment right to petition their government, or fraud. In fact, the only plausible legislative action that Congress as a whole could take in this instance would be in altering Federal fraud and RICO Act statutes to inappropriately help big oil avoid potential liability. However, even in that instance, such a bill would not come anywhere near the jurisdiction of the Committee on Science, Space, and Technology.
Your June 17 letter claims legislative jurisdiction over this ``investigation`` because we oversee $31.8 billion in annual federal government research expenditures. Somehow you link the Committee`s specific jurisdiction to fund federal scientific research to being the science police for the United States. Even if we had such expansive jurisdiction (and we do not), it would still fall far short of having jurisdiction over state police powers or fraud laws, which are the true subject matters of this ``investigation.`` Thus, based on the legal authorities you yourself have cited, this ``investigation`` violates the Constitution.
This ``Investigation`` is Illegitimate
In the foregoing, I have pointed out the many factual and legal shortcomings and mischaracterizations contained in your May 18 and June 17 letters. Sadly, despite having these shortcomings previously noted to you, this misguided effort is continuing. In reality, this overreach is simply the culmination of three years of ``oversight`` run amuck. When you assumed the Chairmanship of this Committee, Members were promised an ambitious and bipartisan legislative agenda. That did not materialize. What has taken its place is a series of increasingly disturbing ``fishing expeditions`` masquerading as oversight.
I noted your May and June letters contain a great deal of unintentional irony. I`ll note one more example. In your June 17 letter, as a justification for your current investigation you say:
[C]ongress has a responsibility to investigate whether such investigations are having a chilling effect on the free flow of scientific inquiry and debate regarding climate change.
Here, you could just as well be referring to your own misguided investigation into eminent NOAA climate scientists last year. In that ``investigation`` you actually subpoenaed NOAA Administrator, former astronaut, and authentic American hero Dr. Kathy Sullivan in an attempt to obtain the email communications of world renowned NOAA climate scientists. What was the purpose of this investigation? It was simply a fishing expedition against scientists who reached a scientific conclusion with which you personally disagreed. In the end, your investigation, like so many recent Science Committee investigations, found nothing.
I have served on the Committee on Science for more than two decades, and during that time this Committee has accomplished great things. We`ve overseen the completion of the International Space Station and the sequencing of the human genome, and we`ve undertaken serious investigations, ranging from the Space Shuttle Challenger accident to the environmental crimes at the Rocky Flats nuclear site. However, lately the Committee on Science has seemed more like a Committee on Harassment. The Committee`s prolific, aimless, and jurisdictionally questionable oversight activities have grown increasingly mean-spirited and meaningless. They frequently appear to be designed primarily to generate press releases. However, none of these recent investigations has rushed head long into a serious Constitutional crisis like we are about to face. We are moving into dangerous and uncharted territory.
At the beginning of this Congress I swore an oath to uphold the Constitution. I take that oath seriously. As evidenced by the letters you have received from Democratic Members from New York, California, Virginia, Maryland, and the District of Columbia, the Democratic Members of the Committee also take this oath seriously. We will not sit idly by while the powers of the Committee are used to trample on the Bill of Rights of the U.S. Constitution. I implore you to cease your current actions before they do lasting institutional damage to the Committee on Science, Space, and Technology and the Congress as a whole.
Thank you for your attention to this matter.
EDDIE BERNICE JOHNSON Ranking Member Committee on Science, Space, and Technology