Dem AGs Accused of Flouting Public Records Laws

(via Chris Horner) Conservative legal group blasts agreement to withhold documents

BY: Lachlan Markay

Freebeacon

A conservative legal group is accusing state Democratic officials of conspiring to flout public records laws in order to keep secret details of a campaign to bring racketeering charges against climate policy dissenters.

Democratic attorneys general led by New York’s Eric Schneiderman are seeking to block efforts to obtain documents about their efforts by invoking an overbroad claim to secrecy in ongoing legal proceedings, according to the Energy and Environment (E&E) Legal Institute.

“These activist AGs are trying to write themselves out from freedom of information laws their legislatures have written them into,” E&E senior legal fellow Chris Horner said in a Wednesday statement.

According to Horner, “they are hiding behavior that seems to be precisely the sort of abuse lawmakers sought to expose to sunlight when deciding to cover their states’ chief law enforcement officers under FOIA laws, particularly their use of nearly limitless powers to chill opposition and damage political opponents.”

Schneiderman and his team of state AGs have pursued a legal campaign against oil giant ExxonMobil since last year. They allege that the company misrepresented the dangers of climate change to its investors and the public, and enlisted nonprofit advocacy groups to advance their alleged fraud.

Schneiderman has subpoenaed Exxon, but neither he nor any other AG involved in the effort has so far taken legal action against the company or any other party to the alleged racketeering scheme.

Despite the absence of any litigation, Schneiderman and his collaborators worked behind the scenes to shield their work from public scrutiny by attempting to exempt it from state and federal open records laws under the theory that internal communications would compromise their legal efforts.

Attorneys general involved in the effort circulated a common interest agreement in March that detailed their cooperation in the Exxon matter. It explicitly prohibited signatories from sharing information about the legal campaign.

The agreement stipulated that if any relevant information “is demanded under a public records law, the party receiving the request shall … refuse to disclose any shared information unless otherwise required by law.”

The agreement all but required every state AG’s office party to it to go to court to prevent any covered information from becoming public.

After a Schneiderman aide circulated a draft of that agreement, an employee of Vermont’s attorney general responded, “our office is okay with refusing to disclose covered documents if we can do so under our current law, but we really avoid taking on an affirmative obligation to always litigate those issues.”

Others signed on eagerly. “No comments. I will sign,” an aide to Rhode Island’s AG wrote in response.

E&E obtained those emails through a prior open records request, but it says that the language of the agreement is illegally preventing the group from obtaining records from subsequent requests.

In June, the Illinois attorney general’s office cited the common interest agreement in withholding documents from an E&E open records production. Those documents included materials handed out at a March meeting between Schneiderman and other AGs and, in a twist that Horner described as Kafkaesque, a copy of a revised agreement crafted at that meeting.

“They’re hiding behind a contracted promise to withhold/make people sue, hiding even the contract promising this, and hiding even the parties involved in the contracted promise,” Horner said in an email.

According to E&E, the language in original common interest agreement is so broad that it cannot be reasonably interpreted as an attempt to defend the integrity of the AGs’ legal arguments and strategies.

The agreement covers information related to legal campaigns against Exxon—though the company is not mentioned by name—but also covers much broader “topics” such as “conducting investigations of potential illegal conduct to limit or delay the implementation and deployment of renewable energy technology.”

It also includes not only the attorneys general and their staffs, but also “certain outside advisors,” who are not specified. Schneiderman and his team have been collaborating with environmentalist groups on their Exxon campaign for over a year.

E&E attorney Chaim Mandelbaum pointed to that provision as evidence that the agreement shields records from public view that are not, and cannot be, directly related to the AGs’ legal strategies.

“The AGs may investigate, but how can outside groups like the Union of Concerned Scientists have a role in that or ensuing litigation? They can’t,” Mandelbaum said in an email. “These outside groups also don’t share a similar interest with the states.”

The agreement’s broadness, and the fact that there is no ongoing litigation in the Exxon case, makes it impermissibly broad, according Mandelbaum. “There is no clear scope to this agreement.”

Common interest agreements are common when different parties are collaborating on a legal action. But they require that litigation be ongoing or imminent. Neither is the case here, E&E says.

“A common interest agreement covers a case or set of related cases, where parties can be lined up on the same side,” Mandelbaum explained. “Here, however, the NY AG’s draft shows they put broad topic areas under the agreement, so they could discuss anything related to those areas without having to make them public. These areas are as much political topics are legal ones.”

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68 thoughts on “Dem AGs Accused of Flouting Public Records Laws

  1. In the US, you and I must obey the law. The law is not for government officials, or high- ranking former officials. What part of that has not been made clear to you, this week.

      • A lot of “elites” think the law does not apply to them, right up until the handcuffs snap shut.

      • Please delete my post. I think I have probably misread the comment I replied to.
        Yes, some animals think they are more equal than others.

    • Didn’t use to be that way so much, but things do seem to have changed & those not convicted probably set a precedent for a future larger “catastrophe” since there is now no fear of punishment:
      1980’s vs 2008: “The savings and loan debacle was one-seventieth the size of the current crisis, both in terms of losses and the amount of fraud. In that crisis, the savings and loan regulators made over 30,000 criminal referrals, and this produced over 1,000 felony convictions in cases designated as “major” by the Department of Justice. But even that understates the degree of prioritization, because we, the regulators, worked very closely with the FBI and the Justice Department to create a list of the top 100 — the 100 worst fraud schemes. They involved roughly 300 savings and loans and 600 individuals, and virtually all of those people were prosecuted. We had a 90 percent conviction rate, which is the greatest success against elite white-collar crime (in terms of prosecution) in history.
      In the current crisis, that same agency, the Office of Thrift Supervision, which was supposed to regulate, among others, Countrywide, Washington Mutual and IndyMac — which collectively made hundreds of thousands of fraudulent mortgage loans — made zero criminal referrals.”
      http://billmoyers.com/2013/09/17/hundreds-of-wall-street-execs-went-to-prison-during-the-last-fraud-fueled-bank-crisis/

      • Do some more research, banks were forced/encouraged to give those loans in 2008. Bush’s man was called racist for suggesting it would cause the problems it did. You can watch the Cspan video. 27 republicans predicted it and wrote requesting change, they clearly understood it was government’s policy that was the issue.
        The head of Freddie Mac was the finance chairman’s live in lover. Government would have had to prosecute itself.
        What exactly is a “fraudulent” loan?
        You’ve bought into the she’ll game blaming big business once again for bad government policy. ACA will be the next failure they try to blame on big business.

    • Why they know they can, is answered at barefootsworld.net ” Who’s running America”

  2. I thought (C)AGW was a common-interest situation? It is in the common interest of Everyone to know what these guys are thinking and planning- climate change makes it so!

  3. Everyone PLEEEEEASE stop using the word “Democratic” when referring to the Democrats. There is no Republicanic party nor is there a Democratic party. There are only Republicans and Democrats (and a few Libertarians).

  4. “Schneiderman and his team of state AGs … allege that the company misrepresented the dangers of climate change to its investors”
    My guess is that nothing would please them more if the investors in Exxon Mobile loose money.
    The investors have certainly not asked the AG´s to step in.
    It seems to me that the AG´s have been using a vicarious argument to pursue their personal and / or the Democratics political agenda.

    • The big risk wrt climate change is what the government regulations will be and what they will cost. Used to be you could get that information from the MSM; nowadays I guess it is up to ExxonMobil.

      • I miss watchdog journalist in Main Stream Media. I guess that role has been taken over by sites like Watts Up With That – among many others. My guess is that main stream media will have outplayed their role before long.

  5. I cannot work out exactly where the ‘fraud’ is. Were they so low as to plan only to smear Exxon with the ‘continuing fraud investigation’ and float that as a meme on all their websites? That is a smear campaign, not a legal investigation.
    I cannot find in the above article anything that even hints at ‘fraud’ relating to shareholder value or anything else. Defrauding who of what exactly? Keeping the share price up because fossil fuel companies are still relevant to the fuel supply? Even if true (meaning they suppressed their Gnostic knowledge about the climate) this is fraud? All the records will show is that they knew the models were bunk, the oil companies have far better models predicting temperatures, fuel demand and supply, and that they make the most money by having the right product available at the right time even when it takes 10 years notice to get the refinery in operation.
    People conspiring to falsely accuse oil companies of something in order to bring about a public perception that Exxon et al are crooks will bring down the value of the shares in negative anticipation. Now that is fraudulent. And the perps are well known as they all helpfully put their signatures on the document. Throw the book at them.

    • I remember Harry Reid made some false accusations about Romney on the Senate floor because he had immunity from prosecution (for slander/libel) when speaking there. IIRC, everyone including Reid knew the accusations were untrue, the only point was to drag Romney’s name through the mud. I suspect that the AGs’ press conference may provide them with similar cover: immunity because it is part of their official duties (or some crap like that).
      You are probably right about the aim to bring down share value through a smear campaign. The GMU emails showed that plenty of people know perfectly well that there is no true legal case. If Exxon, et al cannot be brought down through legal action, the next best thing is to destroy them through bad press. Leftists have perfected this tactic over the last few decades. Nuts & Sluts, anyone?
      May these idiots be the first to lose their iPhones and access to electricity.

    • That’s the real issue here. Even if every accusation is true, they clearly have no case for fraud.

    • “Defrauding who of what exactly?”
      Exactly. They are trying to use Exxon’s opinions on an unproven scientific theory as evidence of guilt of a crime.
      CAGW has to be real, and Exxon had to know it was real, and hid the fact from the public, in order for any kind of prosecution to go forward.
      So all the AG’s have to do is go before a judge and prove CAGW is real. That is the reason the “prosecution” is stalled, and will remain stalled, because the AG’s can’t prove CAGW is real.
      If they try, they will just cause the judge to reach the opposite conclusion as the judge realizes the AG’s don’t have the evidence to prove their CAGW case. Trying this in court will turn the judge into a Skeptic.
      It is not a crime to speculate about an unproven scientific theory. A scientific theory that remains unproven to this very hour and day. The AG’s have hit a deadend.

      • I should have paid attention to when this first started. XOM has been going steadily up since March 4, 2016.That tells me investors don’t believe the AG’s have a snowballs chance.

  6. Discussions between clients and attorneys are secret. Nobody can force either party to disclose them. It means that a client can be completely frank with her attorney without worrying that the attorney will be forced to divulge them. It is a fundamental principle of law.
    Joint defense privilege extends client attorney privilege to cases where several parties are lined up on the same side of a case. The various lawyers and clients can share information with each other with the expectation that those communications will be secure.
    Common interest agreements build on joint defense privilege.

    Of course, not every matter in which clients and their attorneys want to exchange information with others and their attorneys involves litigation. To address this possibility, many courts have extended the principles of the joint defense privilege to the nonlitigation context. link

    Note the wording “many courts have extended the principles of the joint defense privilege”. It doesn’t say all courts.
    IANAL but it seems that FOI cases could be brought in multiple jurisdictions because AGs and organizations from several states are involved. It’s only necessary to win one case to collapse the common interest agreement.

      • cB, yes but.
        State AG’s have no clients except their respective states. And those states do not, by definition in Constitution 4 sections 1 and 4, have an ability to ‘collude’ except criminally, as per (for example) 18USC241 of the Civil Rights Act. And they cannot agree to do so otherwise per Constitution Article 1 section 10.3. And their state investigations are potentially criminal, not civil (e.g. Schneiderman’s reliance on the NY Martin Act defining statutory fraud as material misrepresentation without the additional common law elements of scienter, reliance, and damage). Which does not apply to the other 17 AG’s at Gore’s press conference. Nor to Gore.
        Bottom line, these warmunist AG’s are being taken behind the ‘legal woodshed’ and ‘schooled’ the old fashioned way by Chris Horner and friends. Deservedly so. Lets support them financially.

      • ristvan says: July 6, 2016 at 3:14 pm

        I agree. Nothing is ever guaranteed when you go to court. Having said that, I do think these folks are pretty far out on a limb. You provide good reasons why client attorney privilege doesn’t apply let alone its tenuous extension as a common interest agreement. However IANAL so take my ramblings cum grano salis.

      • PA says: July 7, 2016 at 4:01 am
        … Neither UNIX System Laboratories nor Berkeley Software Design were covered by FOIA laws.

        The history as taken from wiki agrees with the way I remember it. If you are in doubt, you can find the story on groklaw.org. The thing to remember here is that BSDi was a creature of the University of California which was a codefendant. The university was subject to the California version of FOI.

        In November 2004, a copy of the USL v. BSDi settlement agreement was posted to the Groklaw website, obtained from The Regents of the University of California’s Office of the General Counsel under the State of California Public Records Law. This crucial link in UNIX legal history is now public.

        My point was that a contract to keep something secret did not withstand FOI. I suspect the same will be the case (in at least some jurisdictions) for Common Interest Agreements.

    • Discussions between clients and attorneys are secret.
      Huh?
      These are public officials bound by transparency statues, that conspired to ignore their transparency statutes.
      An agreement to do something illegal isn’t legally binding. You can’t write a legally binding contract that obligates someone to circumvent the law.
      Neither UNIX System Laboratories nor Berkeley Software Design were covered by FOIA laws.
      The AGs are acting like the companies and NGOs they are suing are covered by FOIA. They aren’t.
      Further, the Attorney General’s client is the state, which is covered by transparency laws.

      • You don’t get it. The AG is paid by the state and represents the state. The greenies aren’t his client. And if the greenies were paying him (which they well might have, as neither greenies or liberal AGs are very honest), while that would make them his client, that is a bribe, and the AG should be facing bribery charges.
        Further the AGs can’t legally conspire to subvert state law.
        The UNIX case doesn’t appear to have any relevance to the RICO 20 case.

      • PA says: July 7, 2016 at 3:26 pm
        You don’t get it.

        Both ristvan and I are saying that we don’t think the common interest agreement will withstand FOI. Do you disagree with that?

      • commieBob July 8, 2016 at 12:22 am
        Both ristvan and I are saying that we don’t think the common interest agreement will withstand FOI. Do you disagree with that?

        If that is where you are going, I misunderstood, my apologies for not scrutinizing your argument closely enough.
        In that case we agree on the outcome. I’m surprised that what should be smart lawyers stuck their heads in the lunette and locked it in place. I’m sort of disgusted with abusive lawfare and suspect I am not alone.
        Although a major La Nina and a Trump victory shouldn’t affect their case, it will, and not to the better.

      • PA says: July 8, 2016 at 2:39 am
        … I’m surprised that what should be smart lawyers stuck their heads in the lunette and locked it in place.

        For about a decade, I followed Groklaw. It covered the attempts by a company called SCO to use the courts to thwart Linux. SCO didn’t really have a chance but managed to string out a scorched earth campaign for nearly a decade. There were a number of lawyers who used to post on the site. It was sobering to notice how often they were wrong when they predicted how a judge would rule.
        When I see lawyers doing crazy stuff, I am reminded that crazy stuff sometimes prevails in court. I think they are working on the principle that, if you throw enough mud at the wall, some of it will stick.

    • Wait a minute. These are not clients, they are activists. They would not get a sou in damages even if the case could be proven.

      • As I recall, a client engages an attorney for a specific case. Are these AGs under the control of the “clients”? Ie, can the clients tell them to drop it, or have approval power over settlements?

      • The bigger issue is that for the greens to retain the AGs as an attorney they would have to pay them a retainer.
        Paying officials on the public payroll for a service is known as a bribe.
        So if the greens were actually the clients of the AGs this case is going to be even more fun than it looks now.

  7. People Are saying that Hillary got off because she is powerful when she really got off because she is a Democrat powerful Republicans go to jail.

    • Ask Ted Stevens, Tom Delay and Bob McDonnell. Indicted , convicted , destroyed and overturned. Apologies, anyone?

  8. “Discussions between clients and attorneys are secret. Nobody can force either party to disclose them. It means that a client can be completely frank with her attorney without worrying that the attorney will be forced to divulge them. It is a fundamental principle of law.”
    That is why Hillary hired all her previous aids as lawyers so they could refuse to answer any questions about how they conspired to do questionable if not illegal actions.

    • Yep. I have visions of her as the evil genius who finally bested James Bond (probably by triangulation). The cause of death will have been confusion induced brain explosion.

  9. We are entering “Hall of Mirrors” territory here, as elsewhere in Obama-World
    “They’re hiding behind a contracted promise to withhold/make people sue, hiding even the contract promising this, and hiding even the parties involved in the contracted promise,” Horner (CEI) said in an email.
    Just as Hillary is given a “pass” by the FBI because they cannot produce evidence that her actions “intended” to harm US interests. “Intent” is immaterial in charges/cases of “gross negligence”. The mere facts of the case show clearly that her “intent” was to conduct public business outside of public or government scrutiny, and those acts are patently illegal.
    She may not be charged (at present), but she is clearly guilty
    FBI Director Comey’s action is a slap in the face to all FBI investigators.

    • I suspect the “regular” FBI employees are pretty steamed about their ordered “conclusions”. If anyone actually thinks that Killary’s actions were not criminal, they are either beyond stupid or on a borderline lethal amount of drugs. Unfortunately, there is no way the current administration was going to let her get taken down. She knows too much, and everyone in DC knows that the Clinton machine’s MO is scorched earth. Case in point: O hates her and the feeling is mutual. Yet he is suddenly actively supporting her campaign? She must have a lot of dirt on him, if O is acting like a fan.
      It is unfortunate that common sense does not always prevail in the legal system. A reasonable person can look at the AGs’ agreement and see that it is meant to circumvent FOI requests and is written to promote actions that are not really legal (at least in spirit, and probably by the letter). Will a judge apply reason and common sense? Probably depends on which judge hears the case. 😛 Lawyers who write “agreements” that promote or advise illegal, unethical, and/or dishonest actions should be disbarred. Vigorous offense and defense do not mean act outside the law.

  10. Can somebody feed this to Trump’s team?
    He must talk about it next time he takes aim at [snip]…
    This would be sure thing that MSM would finally notice this blatant abuse of power…

    • Janus100 wrote: “Can somebody feed this to Trump’s team?
      He must talk about it next time he takes aim at [snip]…
      This would be sure thing that MSM would finally notice this blatant abuse of power…”
      Janus, don’t get your hopes up about the MSM coming to their senses. They already know what the deal is, and they are backing Hillary all the way.
      The MSM is not going to suddenly have a revelation and see the light. They are a propaganda organ for the Left, and the truth is not in them. They are twisters of truth, not tellers of truth.

  11. These people need to be held fully accountable for their actions, and prosecuted to the fullest extent of the law. The public must also be kept informed at their attempts to silence those who have differing opinions.

  12. No! No! Exxon and others of their ilk were out there, pretending to search for oil, while they were really planting bristlecone pines (and hockey-stick trees) for Michael Mann to find!

  13. From the article: “Attorneys general involved in the effort circulated a common interest agreement in March that detailed their cooperation in the Exxon matter. It explicitly prohibited signatories from sharing information about the legal campaign.
    The agreement stipulated that if any relevant information “is demanded under a public records law, the party receiving the request shall … refuse to disclose any shared information unless otherwise required by law.”
    The agreement all but required every state AG’s office party to it to go to court to prevent any covered information from becoming public.”
    That sounds like another conspiracy to me. Horner needs to subpoena this document, too.

  14. These Democrat AG’s have made a big mistake. Now they are trying to figure out how to extracate themselves from this corner they have painted themselves into.
    They are trying to criminalize Climate speculation and theory, by calling it established facts. Their big problem is there are no facts to present when you are dealing with speculation and theory. They have nothing concrete to show a judge. Game over.
    Let’s hope the AG’s and their fellow conspirators eventually suffer politically and financially for this abuse of power.

  15. As long as the administration is in Democrat hands, it is very unlikely these Attorneys General have anything meaningful to fear in regards to any backlash. If Trump, and the Republicans, manage to win the upcoming election, then that might be a whole different ball of wax. Until then, the AG’s may suffer a few set backs in the courts, as has already happened, but that’ll be about it.

  16. At least17 state AG’s strongly disagree with Demosocialist Party AG’s attempt to
    silence and intimidate targeted businesses .
    TWO FACTS : Climate Changes and Global warming, when it occurs , is a very positive thing .

  17. I don’t know why anyone is expecting rule of law to be any kind of an issue here – at least as a defense for skeptics. I think it’s been conclusively proven – certainly in bold face this week – that the law is now simply a tool to be used to further Progressive agenda items and dismissed, ignored, or bastardized when it is convenient. They aren’t even bothering to hide it anymore.

  18. I guess the most “you can’t see me” administration in history isn’t as transparent as it thought.
    I pray we never have to see how “transparent” another Clinton administration would be.

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