New York ‘Climate Speech’ Investigation Unconstitutional Even Under King George III

By Mark Fitzgibbons | November 16, 2015 | 2:35pm EST
New York Attorney General Eric Schneiderman (AP Photo/Frank Franklin II)

New York’s top law enforcement official, Attorney General Eric Schneiderman, was able to bypass the objective check of either a judge or grand jury to issue an 18-page warrant to Exxon Mobil demanding documents and emails going back to 1977. Such unilaterally issued warrants are commonly called “administrative subpoenas.”

Schneiderman claims to be enforcing a law called the Martin Act that criminalizes statements of publicly held companies even when there was no intent to mislead investors.

His reason for issuing the subpoena? Many observers believe it is that Exxon doesn’t agree with Schneiderman (and Al Gore) about their theories of climate change. Forbes outright calls the subpoena a witch hunt.

Schneiderman, perhaps more interested in using judge-less administrative subpoenas for enforcing ideology instead of law, also recently named a net neutrality activist to his staff, and gave him broad subpoena power to target companies that oppose a government power grab over the Internet.

Unlike Climategate figure Professor Michael Mann, whose discredited “hockey stick” global warming graph was financed by taxpayer money, Exxon funded its own studies that resulted in its public statements about global warming and climate change.

On First Amendment grounds, Mann fought an attorney general subpoena investigating taxpayer fraud, and never produced his papers. As Mann himself later wrote, “Scientific and free speech groups cried foul. Nine hundred Virginia academics, in a letter organized by the Union of Concerned Scientists, argued that the investigation sent a chilling message to researchers who work on issues of public import.”

The New York Times called the taxpayer fraud investigation of Mann waging war on climate science, but reports far differently on the investigation of Exxon, saying it is for “possible climate change lies.”

Schneiderman’s judge-less warrants are having their intended effect on climate heresy. As reported at State AG Insights blog:

“Exxon’s funding of these studies was far from unique, and the reach of the Attorney General’s investigation is uncertain.  It bears noting, however, that on the heels of AG Scheiderman’s announcement about Exxon, Peabody Energy Corp.–one of the world’s largest private-sector coal companies–agreed to end an ongoing investigation by the New York Attorney General by revising its shareholder disclosures to more fully outline the impact of potential climate change regulations on its business.”

The use of government investigations to silence speech and thwart free markets are among the historic reasons why we have the Fourth Amendment. To the Founders, warrants were search or seizure orders requiring authorization by judges, not unilateral acts of bureaucrats or law enforcement officials. This separation of powers helped prevent arbitrary or abusive investigations by overzealous government officials.

The notion that government officials could unilaterally issue their own warrants was not even accepted by the attorney general for King George III. In 1768 Attorney General William De Grey helped explain this regarding the Writs of Assistance, which were warrants used to search for “frauds” of evading payment of duties under the Stamp Act.

Parliament under King George’s predecessor legislated Writs of Assistance, but failed to expressly authorize judges to issue them, so their legality was doubted. Indeed, in 1755 Massachusetts Governor Shirley wanted to issue his own Writs, but was told they would be illegal unless his agents obtained them from judges of the Superior Court. Parliament under George III subsequently legislated them again, but expressly authorized judges to issue them.

Even then, judges in America declined to issue the Writs when officials seeking them failed to provide "Informations," which are statements of facts made under penalties of perjury. Eventually called “oath and affirmation” in the Fourth Amendment, this highlights why administrative subpoenas today are unconstitutional – or at least should be deemed so. Law enforcement officials may not give oath and affirmation to themselves, as that would defeat the purpose.

Following well-recognized common law expressed by great English jurists who influenced the Founders such as Matthew Hale, Edward Coke and William Blackstone, colonial American judges said it was "unconstitutional" even under English law to issue the Writs without this oath and affirmation given to them.

Attorney General De Grey noted that in England, clerks of the Court of Exchequer were issuing the Writs to government officials. He claimed the government was afraid the delay of getting the Writs issued by judges would let people hide the goods to be seized, and opined that the English method was appropriate for American Writs. Even so, law enforcement officials could not unilaterally issue their own warrants, as Schneiderman has done.

At the prompting of Boston patriots James Otis, Sam Adams and others, colonists formed mobs and "rescues" when government officials attempted to use these Writs. Lawyer John Adams, who chronicled the arguments in court made by Otis against the Writs of Assistance, also successfully defended John Hancock in his criminal trial after his sloop Liberty was seized under these Writs.

John Adams later wrote the Massachusetts Constitution, which included the original version of the Fourth Amendment with its requirement of “oath and affirmation” before warrants may be issued to civil officers.

The notions that those with power may want to criminalize speech and commerce of those with whom they disagree ideologically, and favor cronies, are older than America. The Fourth Amendment requires oath and affirmation of probable cause that some law may have been violated before warrants may be issued. The separation of powers inherent in the warrant process dating back centuries requires neutral judges, and unilateral subpoenas are unconstitutional.

Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."

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