By
John Shu
September 29, 2016 at 5:00 am ET
A hypothetical for those who care about abuse of power, freedom of belief, and freedom of expression:
Imagine that 20 state attorneys general, who are the states’ top law-enforcement officials and who all “coincidentally” are Republicans, decided that the “consensus” is that the publicly-traded companies which comprise the “mainstream media,” such as CBS Corp., Comcast (NBC), The Walt Disney Co. (ABC), Graham Holding Company (Washington Post), Gannett (USA Today, et al.), the New York Times Co., Time Warner (CNN, HBO), and TRONC, Inc. (Chicago Tribune, LA Times, et al.) made false or misleading statements or omissions each and every time one of them claimed that their news or documentary divisions/personnel were objective, and thus (1) began investigating the companies for fraud, securities fraud, fraud-on-the-market, consumer fraud, and various other fraud-related acts; and (2) issued subpoenas to these companies and their personnel for communications and documents going back more than 40 years.
Imagine that these 20 state attorneys general also decided to investigate and subpoena left-wing, non-profit, special-interest organizations and think tanks which have reputations for colluding with the “mainstream media” in order to promote certain narratives and suppress or minimize others, distorting facts and/or knowingly issuing false information. Examples include Moms Demand Action for Gun Sense in America, National Action Network, Black Lives Matter, the Center for American Progress, the New Democrat Network, and others. For good measure, imagine that the 20 state attorneys general also decided to investigate and subpoena billionaires who support these groups, such as George Soros.
Finally, imagine that these 20 state attorneys general decided to sign a secret “common interest agreement,” where they promise to not disclose anything to the public unless a court of law forces them to do so, and also hold a press conference with former Vice President Dick Cheney and representatives of several conservative groups to brag about their investigations, subpoenas, and future influence on public policy.
If this seems wrong, if this seems like an abuse of power, if this seems like something that should never happen in these United States, I agree with you. Except that it already has happened.
Starting in 2014, approximately 20 Democrat attorneys general, known as the “Green 20,” banded together to investigate ExxonMobil and other energy companies for alleged fraud and other charges regarding global warming. They essentially claimed that ExxonMobil knew about global warming in the 1970’s and therefore any sales or marketing since then was fraudulent. Democrat politicians often refer to a “consensus” to indicate that global warming is real, even though the 1970’s “consensus” was that we should be deeply concerned about global cooling, to the point where green advocates demanded melting the Arctic ice cap with black soot in order to save the planet.
The Green 20 subpoenaed ExxonMobil’s records and communications from the 1970’s to the present. They also subpoenaed conservative-leaning think tanks such as the Heritage Foundation, the American Enterprise Institute, and the Competitive Enterprise Institute for their communications and documents. At least one of the Green 20 used a class-action plaintiffs’ law firm to mail out subpoena(s), indicating collusion with a profit motive.
On March 29, 2016, the Green 20 held a press conference with former Vice President Al Gore and representatives from liberal think tanks, “green” groups, and class-action plaintiffs’ law firms to announce their investigations and subpoenas. The Green 20 boasted of their “unprecedented level of commitment and coordination” to use the power of the state to “deal with the most pressing issue of our time … preserve our planet and reduce the carbon emissions that threaten all of the people we represent.” In May 2016, the Green 20 secretly signed a “Climate Change Coalition Common Interest Agreement,” where, among other things, they agreed not to disclose anything to the public absent a court order, thwarting open-records or “good government” laws similar to federal FOIA (Freedom of Information Act).
The issue here is not climate change per se, but whether the Green 20 acted properly and within Constitutional bounds. Even if one strongly believes that climate change is a serious problem, one simultaneously can recognize that the Green 20 are abusing their state power, as the media/news company hypothetical illustrates. The Green 20’s improper and unconstitutional actions turn what should be legislative/public policy issues into a law-enforcement ones. Those who believe that the government must pass legislation regarding climate change must go through the ballot box, not the jury box. Private plaintiffs in several states may not use lawsuits to scare, censor, or silence critics, just as the Green 20 may not.
No matter how admirable a particular political end may be, the means by which that end is achieved is equally, if not more, important. Those means must comport with the law and the Constitution.
John Shu is an attorney in Newport Beach, Calif., with extensive experience in litigation and constitutional law. He served in the White House under President George H.W. Bush and in the Bush/Cheney Transition Headquarters under President-elect President George W. Bush.
Morning Consult welcomes op-ed submissions on policy, politics and business strategy in our coverage areas. Submission guidelines can be found here.