West Virginia Record

Friday, April 3, 2020

AGs, trial lawyers unite to abuse power

Their View

By Tiger Joyce | Jun 8, 2016

General court 10

WASHINGTON – In recent months mainstream media outlets have offered only limited coverage of Orwellian efforts by progressive government officials to outlaw earnest questions about computer predicted climate catastrophes or costly policy proposals aimed at mitigating climate change.

But this dangerous threat to critical First Amendment and due process rights deserves much more attention.

One element of this story that has received almost no attention is the hiring by state attorneys general of profit-seeking, private-sector personal injury lawyers to run litigation designed to intimidate and silence dissenters while also funding – through resulting settlements or verdicts – future campaigns of allied politicians who assert, as President Obama did in his 2015 State of the Union address, “No challenge poses a greater threat to future generations than climate change.”

With due respect to the president and his allies, we see government suppression of political and scientific dissent and subversion of the public interest by self-interested personal injury lawyers, deputized with the awesome power of the state, as threats more pressing than computer projected climate change. And unlike climate projections decades and centuries into the future, the corrupting conflicts that arise when AGs hire on a contingency-fee basis their political patrons to sue deep-pocket, often out-of-state corporate defendants have been voluminously documented in the past and present.

For example, a Pulitzer-winning New York Times series two Decembers ago focused in particular on the business model of the class-action specialists at Cohen Milstein, a law firm that seeks to create “big paydays by coaxing attorneys general to sue” large, sometimes politically unpopular corporations or whole industries. The firm brags about being the “most effective law firm in the United States for lawsuits with a strong social and political component.”

By email a Cohen Milstein spokeswoman said the firm did not participate in a secret but since widely reported Manhattan meeting of climate change activists and political operatives in January. But it’s reasonable to believe the class-action bar’s interests were nonetheless represented as the group discussed frustrations with both federal court decisions that have put on hold the Obama administration’s sweeping regulatory plan to end coal-powered electricity generation and, according to Gallup, voters’ continuing view of climate change as an issue “below average in importance.” So to raise climate change as a major issue in 2016 elections, meeting participants schemed to attack dissenters with legal action, divestment efforts and political pressure coordinated with state AGs.

On cue, at a March 29 news conference blessed by the presence of climate-change archbishop Al Gore, crusading New York Attorney General Eric Schneiderman announced a newly formed inquisition of state AGs determined to investigate and possibly prosecute any agnostics who haven’t yet embraced their religion of climate change and the massive tithing its multitrillion-dollar policy prescriptions will require.

The “AGs United for Clean Power,” he said, will “step into this battle with an unprecedented level of commitment and coordination” against “well-funded, highly aggressive and morally vacant forces that are trying to block every step by the federal government to take meaningful action” against climate change.

Speaking of morally vacant, where precisely on the morality spectrum might these inquisitors locate the shredding of the Constitution? And do they believe their power to hire political patrons, issue government subpoenas and impose mounting legal expenses, fines and settlements on inconvenient climate heretics is divinely derived?

Which brings us back to Cohen Milstein. Claude Walker of the U.S. Virgin Islands, one of the “AGs United,” has hired the firm to unleash subpoenas on ExxonMobil and the Competitive Enterprise Institute, seeking decades’ worth of climate change research and communications with scores of third-party think tanks, foundations, universities and prominent scientists, among others, while alleging possible violations of the Virgin Islands’ version of the federal Racketeer Influenced and Corrupt Organizations Act.

But ExxonMobil and CEI are fighting back, arguing that AG Walker’s delegation of prosecutorial power to profit-seeking private-sector lawyers and burdensome subpoena demands violate their constitutional rights to free speech, freedom from unreasonable searches and seizures, and due process of law. And the attorneys general of Alabama and Texas, decidedly unaffiliated with the Schneiderman-Walker group, are now seeking to intervene in the case on ExxonMobil’s behalf, arguing that Cohen Milstein’s "contingency fee arrangements [with Walker] cut against the duty of impartiality by giving the attorney that represents the government a financial stake in the outcome."

How the courts will ultimately decide these issues is unknown. But with what is well known about the inherently corrupting pay-to-play relationships between certain state attorneys general and the plaintiffs’ lawyers they help make rich and rely on for campaign support, it’s easy to view their recent efforts to crush climate change dissent for political and financial gain as both a disgraceful assault on the Constitution and an unforgivable insult to every American who has ever fought and died to preserve the freedoms enshrined within it.

Joyce is the president of the American Tort Reform Foundation.

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Organizations in this Story

Competitive Enterprise InstituteExxon MobilAmerican Tort Reform AssociationCohen Millstein