What is Kenneth T. Cuccinelli II up to?
That’s been the question on many minds in higher education lately. Mr. Cuccinelli, a conservative Republican, has been Virginia’s attorney general only since January, but he’s already provoked outcries on the state’s campuses twice. In early March, he sent public colleges a letter saying they had no authority under Virginia law to adopt rules protecting gay employees or students from discrimination. Then, in late April, he began what he says is a fraud investigation focused on Michael E. Mann, a high-profile climate-change researcher who was a faculty member at the University of Virginia from 1999 to 2005. Mr. Mann is now director of the Earth System Science Center at Pennsylvania State University at University Park.
The letter about gay-rights rules unleashed a storm of criticism on Virginia’s campuses and elsewhere until Gov. Robert F. McDonnell, also a Republican, intervened by issuing a directive that bans “discrimination against any class of persons without a rational basis.” The fraud investigation, while less of an obvious political lightning rod than the letter, has prompted much deeper concern among universities and research and faculty organizations nationwide. Is Mr. Cuccinelli, as he says, safeguarding taxpayers’ interests by making sure that Mr. Mann did not seek money through a state university based on manipulated climate-research data? Is he misusing his prosecutorial powers to bash higher education for political gain, as critics assert? Is he fishing for potentially damaging information at the behest of climate-change skeptics, as Mr. Mann suggests?
Mr. Cuccinelli, who is 41, has attracted conservative fans with challenges to the federal government’s new health-insurance requirements and to the U.S. Environmental Protection Agency’s authority to regulate carbon dioxide. But praise for the University of Virginia investigation has been largely limited to a core group of climate-change doubters.
Initially, Mr. Cuccinelli gave the university just over a month to produce what could amount to thousands of documents, and university officials responded cautiously. But after three weeks, it hired Hogan Lovells, a prominent law firm, to explore its options. In the meantime, the university’s law-school faculty and its Faculty Senate’s Executive Council criticized Mr. Cuccinelli, as did several organizations, including the American Association for the Advancement of Science, the American Association of University Professors, the American Civil Liberties Union of Virginia, and the Union of Concerned Scientists.
The critics share a common theme. Investigating Mr. Mann, “without having provided any evidence that such an investigation is legitimately warranted, is likely to chill academic inquiry at the University of Virginia and at other state colleges and universities for years to come,” said Will Creeley, director of legal and public advocacy for the Foundation for Individual Rights in Education, in a letter asking the attorney general to reconsider.
But it seems unlikely that he will, according to people familiar with Mr. Cuccinelli’s campaign for the attorney general’s office and with his eight years in the Virginia Senate. “Throughout his career, he has shown that he is a man of deep, deep political commitment,” says Jeremy Mayer, an associate professor of public policy at George Mason University, in Fairfax, Va. “He seldom shrinks from applying those views when he has the power to do so.”
Mr. Cuccinelli, Mr. Mayer says, “really believes that global warming is a hoax.” And, politically, “there’s not really a downside for launching an investigation” of a university professor, Mr. Mayer says, because Mr. Cuccinelli probably counts few professors among his supporters. “He doesn’t lose any votes from his base; he certainly gains more national credibility” in the Republican Party.
A Broad Demand for Documents
The investigation by Mr. Cuccinelli, who declined to be interviewed for this article, is notable on several counts. First, it arises out of last year’s so-called Climategate incident, in which hundreds of e-mails were stolen from climate researchers at the University of East Anglia, in England. Global-warming skeptics seized on the e-mails to argue that climate researchers had hidden data that didn’t fit their models of global warming, but a series of reviews by scholars and even the British Parliament have so far found no wrongdoing.
Second, the investigation was begun under the Virginia Fraud Against Taxpayers Act, a 2002 law that has most often been used to investigate medical-fraud cases. Mr. Cuccinelli is relying on it in this instance because, he has said, “at least some information suggests” that Mr. Mann used research data that he knew was inaccurate to seek university grants while he was at Virginia.
Third, and perhaps most significantly, the scope of Mr. Cuccinelli’s demand for documents from the University of Virginia was nothing short of breathtaking. The “civil investigative demand” delivered to the university seeks “data, materials, and communications that Dr. Mann created, presented, or made” in connection with five grants involving a total of about $484,875. But it also seeks “all documents that constitute or are in any way related to correspondence, messages, or e-mails” between Mr. Mann and 39 other scholars, including many prominent climate scientists, as well as his communications with “all research assistants, secretaries, or administrative staff” with whom he worked at Virginia.
For good measure, it demands “any and all e-mails or pieces of correspondence from or to Dr. Mann since he left the University of Virginia,” and “any and all computer algorithms, programs, source code, or the like created or edited” by Mr. Mann. The demand covers documents going back to January 1, 1998—three years before Mr. Mann gained international notice as co-creator of the “hockey stick": a graph showing that global temperatures, after remaining stable for several hundred years, rose sharply in the 20th century.
Protecting Tax Dollars or ‘Intimidation’?
Brian J. Gottstein, Mr. Cuccinelli’s spokesman, explained the investigation this way in a written statement to The Chronicle: “The revelations of Climategate indicate that some climate data may have been deliberately manipulated to arrive at pre-set conclusions. The use of manipulated data to apply for taxpayer-funded research grants in Virginia is potentially fraud. Given this, the only prudent thing to do was to look into it.”
Mr. Gottstein also said that the attorney general’s office had, in response to a request from the University of Virginia, extended the deadline for submitting documents to July 26 and reduced the scope of the document demand, although he declined to say how. He said the office was working with the university to cause the least possible disruption to the institution.
Asked about Mr. Mann in May on the Kojo Nnamdi Show, a Washington public-radio program, Mr. Cuccinelli was quick to say, “We’re not investigating his academic work—that subpoena is directed at the expenditure of dollars.” He added: “Whether he does a good job, bad job, or I don’t like the outcome—and I think everybody already knows that his position on some of this is one that I question—that is not what that’s about. This is about state tax dollars.”
But even some conservatives say they don’t believe the attorney general. “This is an abuse of prosecutorial discretion,” says Bruce L.R. Smith, a longtime conservative who is a visiting professor of public policy at George Mason. “You don’t want politics in the law-enforcement business—that’s a no-no.” He adds: “Universities have to rebuff this, and they should do it in some kind of concerted way. This requires a very concerted assault by the whole higher-education industry.”
“This is unwarranted legal intimidation,” says Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists. “It’s an attempt to harass and cast doubt on a respected scientist,” she says, adding that “Michael Mann has been exonerated so many times now” in climate-research inquiries. She says that if the attorney general’s investigation goes unchallenged, it could set a precedent for other political inquiries into controversial research. “It deeply, deeply troubles me. This could be the beginning of a very bad series of events.”
‘Silver Lining’
Mr. Mann, who has not been asked to provide any documents himself, says the investigation “makes no sense in isolation,” but appears to be part of a larger strategy to collect and review climate researchers’ e-mails for anything that casts doubt on their findings. He notes that freedom-of-information requests have been filed in several states, including Arizona and Massachusetts, for e-mail messages of colleagues whose names are among the 39 on Mr. Cuccinelli’s demand for documents. People who doubt that global warming is real “are trying to get anything,” he says, “and one of their favorite tactics is to mine e-mails.”
“The silver lining may be that more of my colleagues will understand how mean-spirited and intellectually dishonest” attacks against climate scientists have become, says Mr. Mann. “We really are under assault.”
Is one man’s assault another’s quest for truth? Mr. Mayer, of George Mason, says of Mr. Cuccinelli: “I don’t think even his deepest political opponents would question his sincerity.” Still, he says, “I’m trying to imagine what you might find if you went through 60,000 e-mails from anyone.”