Seventeen attorneys general got more than they bargained for when they held a March 29, 2016 “publicity stunt” press conference to announce, with former Vice President Al Gore by their sides, a campaign to target opponents of the global warming agenda under racketeering laws.
It wasn’t long before several batches of Freedom of Information Act (FOIA) emails, obtained by the Energy & Environment Legal Institute (E&E Legal) and Free Market Environmental Law Clinic (FME Law), revealed that the AGs were working behind closed doors with professional "climate" activists, from both pressure groups and law firms. If that isn’t bad enough, they also show a plan for the AGs to coordinate efforts to stonewall public records requests that threaten to expose their scheme.
How do we know that? The initial batch of emails from the Vermont Attorney General office revealed that RICO ringleader Eric Schneiderman, New York's AG, created a legal document called a Common Interest Agreement (CIA) that sought to write all participating AG offices out from under their own open records laws — including their dealings with those same outside activists — just for this campaign.
This cloak of invisibility extends to other AGs, and "certain outside parties". Records obtained to date show these include a Who's Who of the global warming industry.
Subsequent emails indicate the AGs indeed signed such an agreement; however, the very stonewall called for in the agreement has ensured that no one has yet been able to confirm it. AGs have denied requests for the signed pacts, outright, and are ducking reporters’ questions. But emails we have been able to obtain and blocking efforts both show a clear pattern of evasion.
Attorneys general in states including Illinois, Kentucky and Minnesota have, sometimes comically, labored to deny that the RICO records are public, or keep them secret by claiming that even, e.g., invitations to happy hours are privileged "law enforcement" records.
Other responses of interest include Rhode Island’s AG office imposing delays and hundreds of dollars in fees before handing over records which, on their face, revealed the existence of other "responsive" records not produced. For example, these show Rhode Island's AG agreed to a second CIA to exempt the AGs' ongoing campaign from FOIA laws; they withheld it, without admitting they did so, even though it was plainly an attachment to one of the produced emails.
Massachusetts shows no indication it is processing one FOIA request and, after being pressed on another, demanded approximately $4,000.00 to process it. Of course, it also threatened to withhold most if not all of the approximately 700 emails and 400 attachments even if paid, on the basis of the same “exemptions” already improperly invoked by its partner AGs.
The capo di tutti capi, New York’s Schneiderman, is the most obstructionist of all, taking every delay and extension the law permits and then some, saying he’ll get back to us after the summer.
The unwillingness of the AGs to release even the secrecy pact itself -- let alone the records showing their coordination, which they claim it shields -- contrasts sharply with activist claims that they have been open and transparent about their involvement with the AGs. Further, both the AGs and the activist groups have deigned to respond only to Democrats on Capitol Hill, ignoring Republican concerns over the coordinated scheme to deny others' First Amendment rights.
This campaign with outside activists is exactly the sort of sneaky misuse of power that elected representatives adopted FOIA laws to protect against. Collectively this behavior shows abusive attorneys general going into the bunker to keep their pursuit of political opponents from further exposure. This also represents chief law enforcement officers organizing to subvert the same transparency laws they are sworn to uphold.
E&E Legal and FME Law have already sued Vermont and the District of Columbia AGs for refusing to process RICO-related FOIA requests. Sadly, it appears more suits will be necessary, and one record already obtained suggests this is the AGs’ strategy.
Every aspect of the AGs’ campaign is an outrage. But in the end, these tactics will not work, and the public will see what they’ve been up to, and with whom.
Chris Horner is an attorney in Washington, D.C. who obtained the email records for the Energy & Environment Legal Institute. He is also a senior fellow at the Competitive Enterprise Institute.