By Chris Horner, ATI
Michael Mann made his way back to the Commonwealth of Virginia yesterday to watch his U.S. lawyer reprise the dark conspiracy theories previously weaved throughout his Canadian lawsuit against Tim Ball for repeating the old joke about “belong[ing] in the State Pen, not Penn State”.
The forum was a hearing in the American Tradition Institute’s Freedom of Information Act (VA) case against the University of Virginia (UVa) for certain records sent to or from Mann accounts while he was at UVa. That period is when the chatter about deleting records to circumvent FOI laws and other wagon-circling took place among the self-appointed “Hockey Team”.
That sort of paranoia sounded even worse in the spoken word that it reads in a brief. The judge gave an almost imperceptible shake of his head when my colleague David Schnare wondered aloud, when his turn came, about responding to all of the ad hominem. Enough already, this gesture seemed to say.
The Court allowed Mann to enter as an intervenor in this dispute, from the bench and without explanation. So there’s little we can offer there except that, when all is considered, this does provide the Court with the path of fewest problems (though hardly none, if Mann’s record in pleadings and argument is any basis to judge by; possibly some allies will try and delay matters yet again when we next proceed).
Given Mann’s argument was almost entirely limited to a vast right-wing conspiracy if one involving some names I’d never even heard of and in an apparently studious avoidance of the applicable law, we can only surmise the rationale for this move was grounded in equities found elsewhere than that curious display.
ATI opposed Mann’s motion to intervene simply because he offered no principled basis to intervene. We will appeal therefore with an eye toward settling the question as to what rights, or other considerations, justify a faculty member’s intervention in a FOIA case. For now we welcome Mann to this case to defend the content of his emails in a public forum. Presumably, just more conspiracy theorizing won’t suffice anymore.
We then proceeded to UVa’s effort to reopen the Protective Order, seeking to substitute themselves for us as the party reviewing and selecting exemplar emails from the cache they now admit to possessing. That it would be reopened was pro forma after Mann was deemed to have interests at stake, if what these interests are was left unstated.
The Court noted the distrust between the parties, particularly ours of UVa after all of what they have done, and so did not allow UVA to assume that role. This was despite that in advance they and Mann had agreed to jointly stipulate to this (his lawyer’s rather odd, earlier argument notwithstanding, see below).
But, as we argued, UVa’s utterly terrible record on this matter does not inspire confidence that a fair review and representative sample is to be had from them. Their ill-fit for the newly adopted pose of independent arbiter is somewhat betrayed by their legal bills fighting the AG’s Civil Investigative Demand now heading toward a million dollars. Then there is the enormous pressure from their faculty and pressure groups — which they finally copped to, after arguing previously in pleadings that this was all in our heads. Speaking of its track record.
And, finally, UVa has essentially the same interest as Mann at stake and is no more a suitable arbiter than Mann himself (per Mann, that’s “embarrassment”). To say UVa is aggressively focused on limiting the damage of what occurred in its program, with still not a finger toward self-policing lifted to date, is also something of an understatement.
So we have until a scheduled December 20 hearing to agree to a third party reviewer, cost and methodology. If we cannot agree the court will impose a process.
Toward that end, Mann’s attorney informed the Court that, well, Mann is the only person on the planet capable of understanding the content and meaning of emails he sent and received, thereby not only raising questions about his correspondents but making his future objections as to reviewers something less than entirely relevant or credible.
Cost is to be split at worst three ways, one presumes. Mann is surely going to be raising money for this. So, we won’t be shy, either. We can’t match the cool million the University of Virginia is pouring into their effort to make the embarrassment the revelations in ClimateGate emails to and from Mann’s UVa accounts has caused them go away. But every little bit helps.
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We objected to the decision to reserve the issue for appeal. We will appeal the intervention when all other appeals are also made. We will appeal so as to get an appellate court opinion as to what interests allow intervention in a FOIA case. This is unsettled law, and one of our missions it to address these areas of law. This is not about Mann. This is about getting in place a clean, crisp rule of law so that in the next case someone brings there won’t be any need to spend time on these kinds of preliminary issues. In this case, Mann will have to give his side of the argument in response to ours. Should be fun.
FredT – let’s wind back all the legalities here – why on Earth would you believe that the work product of a government employee is somehow exempt from FOIA?
mwhite says @ur momisugly November 2, 2011 at 11:57 am
Obviously M.Mann speaks in tongues only he can understand.
I just feel sorry for the judge.
This one really takes the biscuit:-
http://www.southernstudies.org/2011/10/special-investigation-whos-behind-the-information-attacks-on-climate-scientists.html
Ironic, isn’t it, that Mann’s emails can only be understood by himself…and that he’s taking a sabbatical right now to study how Climate Science communication is failing and how to fix it. He just MIGHT be the wrong guy for the task…
No, let’s face it, the truth is that Mann’s emails are way too understable. If they were, in fact, impenetrable, why, there’d be no problems releasing them at all. It appears to me that the his lawyers have put him in a bind…
Fascinating! Best of luck David and Chris.
JEM, what do you think is the point at issue here? No parties to the case are objecting to VFOIA in principle – UVa has already delivered thousands of pages to ATI (which ATI promised to disseminate but is nowhere to be seen on their website – maybe they are too tedious). You might have got a different impression from Horner’s public statements, but they are somewhat misleading.
Instead the issue is about how one should deal with exemptions to FOIA (which exist in all FOIA legislation). UVa has asserted that there are emails which are exempt, and ATI is seeking to challenge those exemptions. The initial plan was that ATI themselves would look at everything ‘in camera’ and make arguments on the merits of each email – but that involves everyone trusting that Schnare and Horner would not somehow use or disclose the contents of exempted emails. That trust has clearly eroded, so the judge agreed that a new method (involving an independent third party and a selection of exemplar emails) will need to be negotiated. ATI clearly lost on this point.
Dr. Schnare, “This is not about Mann” – really? You are just pursuing this to improve the clarity of the law? That’s funny.
David Schnare says: November 2, 2011 at 1:41 pm
” the first 15 minutes of salacious harangue.”
???
Schnare,
You lost. Get over it. In their filing they claimed that they were willing to have a neutral third party examine the with emails which they claim to be exempt and to allow for an in camera resolution of disputes, and that appears to be what the judge approved.
The problem now appears to be for the two sides to agree to a third party. May I suggest a lawyer who expert in VFOIA and has worked for neither the UVa nor ATI or any affiliated organizations?
FredT;
Could you please come up with something of substance? You are clearly a troll trying to justify the positions of Mann and UVa and your comments are rather contrived and, frankly, boring.
The non-exempt UVA emails released by the university are on the ATI website at:
http://www.atinstitute.org/law-ctr/hosted-foia-documents/
davidmhoffer, I wish I could match your natural affinity for the language, cogentness of your argument and excitement of your comments, but alas, it is not to be. I hope you will somehow manage to get by regardless.
Rattus Norvegicus says:
November 2, 2011 at 6:17 pm
Schnare,
You lost. Get over it. In their filing they claimed that they were willing to have a neutral third party examine the with emails which they claim to be exempt and to allow for an in camera resolution of disputes, and that appears to be what the judge approved.>>>
Good lord, you think Schnare is losing? UVa fought releasing the emails in the first place, and after all kinds of shenanigans got backed into a corner. They had to agree to the release or be ordered to. So they agreed. Now they are trying to circumvent their own agreement with the same kind of shenanigans, and they are backing themselves into a corner yet again. Did you not read the judges decision? The parties will agree to a neutral 3rd party, or he’ll do it himself.
Frankly, I think that hands all the power to Schnare. Why should he bother to find a neutral 3rd party at this point? That will just go around in circles as UVa objects every time the neutral 3rd party makes a decision they don’t like. The only possible truly neutral 3rd party is going to allow the exact emails they are obviously working so hard to keep hidden. The best possible outcome for Schnare at this point is for the judge to make good on his threat and himself be the neutral third party.
Let the judge be the judge, and determine what emails should be exempt and which not.
Then let’s see Mann try and argue that the judge isn’t capable of understanding the emails. It is just oh, SO much fun when someone stands up in court and explains to a judge what the judge does and doesn’t understand! I’d pay good money to get to see it.
FredT says:
November 2, 2011 at 6:32 pm
davidmhoffer, I wish I could match your natural affinity for the language, cogentness of your argument and excitement of your comments, but alas, it is not to be. I hope you will somehow manage to get by regardless.>>>
Oh don’t worry, I will get by. Now, are you going to come up with something of substance or not?
FredT, I do not detect hilarity in your posts. More like nervous giggles.
davidmhoffer,
The reference to losing is to these two matters alone:
1) Mann as an intervenor
2) Restructuring of the protective order
ATI lost on those two points.
There are two things here which no one has commented on. The first is that Dr. Schnare is the only lawyer on the ATI side admitted to the Va Bar. The second is that the UVa complaint challenges his ability to represent ATI because he was not (properly if at all) released by the EPA to do so.
The third is that if he was not released by EPA there may be trouble on the horizon for him.
Has the court taken possession of copies of all the emails? I would be concerned that persons unknown at UVA might be quietly culling the archive of the most incriminating stuff, if such things exist.
Rattus Norvegicus says:
November 2, 2011 at 7:25 pm
davidmhoffer,
The reference to losing is to these two matters alone:
1) Mann as an intervenor
2) Restructuring of the protective order
ATI lost on those two points.>>>>
Did they? UVa said they said they no longer trusted the process that they previously agreed to and proposed a new one. The judge said no to their proposed fix. He advised that if they didn’t want to go forward with the process they first agreed to, he’d allow them to use a neutral 3rd party instead, but warned them that if they couldn’t agree to a neutral 3rd party, he would do it himself.
That’s a win for UVa?
The fact is that neither said got what they asked for. The question is, who came out stronger as a result?
ATI clearly wins on the second of your two points.
On the first, well, I don’t know who won, but I know who lost. Mann yet again exposed his desperation to keep those emails from the public eye, and his assertion that no one but he could understand their contents is not only hilarious, it is now on the record. Can you imagine what happens now as those emails finaly come out and the notion that what they say can’t be understood by, for example, the judge himself?
In any battle, both sides take casualties. Pointing to some minor casualties on one side tells one nothing about the progress of the battle.
I haven’t seen the judge’s order yet (got a link) but it appears as though the proposal of UVa was accepted pretty much in toto. Real the first of FredT’s links. UVa appeared to be proposing a Vaughn index (as per Federal procedure) I don’t know if that was accepted. But it would seem that the neutral 3rd party was accepted. I look forward to the judge’s decision which should clear this up.
Jeff Alberts says:November 2, 2011 at 7:42 pm
…I would be concerned that persons unknown at UVA might be quietly culling the archive of the most incriminating stuff, if such things exist.
In this one statement you accuse without evidence UVa employees of illegal acts, and, without trial or evidence, manage to state that “someone” is a criminal!
Well done!
Whatever happened to innocent until proven guilty?
The fact that beings like Rattus and FredT have come rushing here to spread disinformation and some blatant lies tells us who ” lost ” it.
Venter,
I hardly think that FredT’s links to submissions to the court are “misinformation”. Like I said, I haven’t seen a link to the judge’s order yet, but it appears to include a 3rd party to review the exempt documents. Is that disinformation?
I accused no one. I merely speculated that such a thing was very possible. Way to read more into what someone types.
I would think that the court would want to maintain the integrity of the evidence in this case. Would you let an accused car thief keep possession of the car until the trial is over?