As Rest of RICO-teers Run for the Exits on #ExxonKnew, Sen. Whitehouse Doubles-Down

As the #ExxonKnew campaign continues to unravel all around him, U.S. Sen. Sheldon Whitehouse (D-R.I.) has been making a last-ditch effort to salvage the cause. But as he delivers speeches on the Senate floor and issues strange press releases repudiating the very same groups he previously praised for their support of a carbon tax, Whitehouse must be starting to feel pretty lonely. He’s just about the only one defending the AG’s investigations under racketeering laws, while an overwhelming number of editorial boards and legal experts are calling the effort legally “flimsy” and an unprecedented abuse of power.

Of course, it was Whitehouse who first kicked off the campaign last year through an op-ed in the Washington Post, urging that a federal RICO campaign be pursued against the industry. His piece is basically the blueprint for everything that would happen later: attacks against think tanks and scholars, academic papers funded by the Rockefellers, and ultimately investigations of U.S. energy companies through RICO laws.

With Whitehouse setting the stage, two professors from George Mason Univ., Ed Maibach and Jagadish Shukla, then spearheaded a letter in September 2015 to the Department of Justice asking them to explore RICO charges against climate “deniers.”  But as we would later learn, thanks to emails released through FOIA, numerous legal experts, and even a number of activists told Maibach and Shukla that a federal RICO case just doesn’t work.

Peter Frumhoff of the Union of Concerned Scientists, who has been a key player in the #ExxonKnew movement, actually declined to join in the effort explaining,

“In reaching out to climate scientists to sign on, we feel that we’d need to give them some firmer grounding for believing that a federal investigation under the RICO statute is warranted – enough so that they’d be able to explain their rationale for signing to reporters and others. As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO. We don’t think that Sen Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.” (emphasis added)

Seeking legal counsel, Maibach contacts a friend at Occupational Health and Safety Administration (OSHA), who tells him that the odds of getting the Department of Justice (DOJ) to investigate under RICO were “slim to none.”

In another email, Mark Cane from Columbia Earth Institute writes to a group of scientists as well as a Sheldon Whitehouse staffer explaining, “I do have misgivings about invoking RICO, which may too easily lead to civil liberties abuses.”

Maibach contacts Alex Bozmoski of RepublicEN, which describes itself as a group of conservatives concerned about climate change, about his letter as well. In Bozmoski reply, he warns Maibach that he’s “talking about prosecuting conservatives.”

Notably those emails show that Whitehouse was undeterred – and that he was actually coordinating directly with these activists:

whitehouse pic

It’s not just activists that Whitehouse is cozy with: he and New York Attorney General Eric Schneiderman (who has launched an official investigation into ExxonMobil) also go way back. In a June 8, 2012 speech, Schneiderman specifically thanked Whitehouse (and indeed activists like Bill McKibben) for helping him become Attorney General. As he says, he “wouldn’t be here” without them:

“I wouldn’t be here without a lot of the people in this room. Well, I would be here, but probably not as the New York State Attorney General. … Lily Eskelsen, Tammy Baldwin, Sheldon Whitehouse, Bill McKibben, Mayor Taveras, it’s an honor to be here. …(0:31 to 0:50)

Over the past few months, Whitehouse has done just about everything he can to move these investigations along:

  • On October 29, 2015 he sent a letter asking Exxon about its funding for so-called climate denial groups.
  • On April 3, 2016 he followed that up with an op-ed in Huffington Post calling out the Wall Street Journal for “protecting” Exxon.
  • On May 26, 2016 he then sent a letter firing back at a Republican letter to the Department of Justice.
  • On June 14, 2016 he published an op-ed in The Hill on about why people should divest from Exxon.
  • On July 11, 2016 he filed a resolution that would put Congress on record opposing efforts by companies and groups to cast doubt on science and spearheaded speeches on the Senate floor decrying the “web of climate denial” that took place throughout that week.
  • On July 12, 2016 he published an op-ed in the Columbia Journalism Review alleging a coordinated attack against him by Exxon’s allies.
  • On July 22, 2016 he sent a letter responding to criticisms leveled by conservative groups against the “web of denial” speeches.

All of this leads up to the press release Senator Whitehouse released this week accusing a number of think tanks of engaging in “climate denial,” even though they happen to employ lots of high-profile supporters of a carbon tax. In fact, one of the groups he targeted actually helped Whitehouse promote his own carbon tax plan a little more than a year ago. Whitehouse has cited experts from the same think tank – the American Enterprise Institute – when pushing a carbon tax on the Senate floor.

While Whitehouse often likes to blame “deniers” for the fact that Congress has refused to pass climate change legislation, he forgets that cap-and-trade failed despite overwhelming Democratic majorities in both houses of Congress and a Democratic president in the White House. He also doesn’t admit that he began delivering weekly climate change speeches on the Senate floor in 2012 precisely because no one else was talking about climate change – Democrats or Republicans.

Senator Whitehouse hasn’t gained much more traction with #ExxonKnew, as most of the Democratic AGs in Schneiderman’s climate coalition have actually distanced themselves from any investigations. In batch of FOIA’d emails, Scot Kline from the Vermont AG’s office clearly states,

Not all of the states have yet opened a formal investigation and there is some sensitivity here (and I suspect in some other states) to saying or indicating that we have.”

It’s little wonder that there’s “some sensitivity” considering that an overwhelming number of editorial boards and legal experts across the country have called Schneiderman’s effort an unprecedented abuse of power.

Bloomberg News said it was a “dangerous arrogation of power.” The Washington Post has expressed concern about the legal precedent of pursuing “criminal penalties over those involved in a scientific debate.” Financial Times said, “The legal basis for these actions seems flimsy…Beyond that, the implications of the investigations for free speech on public policy issues are alarming.”

Harvey Silverglate of the ACLU said recently that the Exxon investigation is “pure harassment.” He continued, “It is outrageous for any law enforcement official to be seeking to win this battle for minds by flexing law enforcement muscle and trying to shut up the other side.”

Philip Hamburger – a law professor at Columbia University – recently wrote that New York’s investigation of Exxon is “a prosecutorial threat to liberty and due process.” Brooklyn Law School professor James Fanto told Bloomberg News that the investigation seems “completely politically motivated.” Former U.S. attorney Matthew Whitaker recently called the investigations “unconstitutional and unethical.”

Tristan Brown, a lawyer and assistant professor of Energy Resource Economics at State University of New York who even admitted that he “empathizes” with the #ExxonKnew campaign, noted that the AGs launching climate investigations are essentially changing the definition of what it means to commit fraud, which sets a “dangerous” precedent.

Whitehouse must feel pretty lonely — since basically no one outside of a handful in Congress, a couple of AGs, and activists groups are actually defending these investigations. Where are all the editorial boards and legal experts saying these investigations are legitimate? We’re still waiting, and we’re guessing Senator Whitehouse is, too.


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