In the state where James Otis famously argued in 1761 against the Writs of Assistance six years after Governor William Shirley was told that such warrants required approval by judges before being issued, Democrat Massachusetts Attorney General Maura Healey is using search and seizure powers that King George III knew his colonial officials did not have – even before the Fourth Amendment became law over government.
In her climate speech probe targeting Exxon and conservative think tanks, Healey issued an administrative subpoena demanding 40 years of documents from the oil company. She never asked a judge to issue this warrant.
It seems that some liberal politicians believe it is acceptable to infringe on Second Amendment rights without due process guaranteed by the Fifth Amendment, while other liberal politicians love to infringe on First Amendment rights by evading the Fourth Amendment, which was supposed to protect papers and effects from unreasonable searches.
Exxon has sued Healey to block the warrant, but attempts to block administrative subpoenas offer plaintiffs little chance at getting discovery from government officials. Had Healey filed suit against Exxon instead of unilaterally issuing the judge-less warrant, Exxon would have the right of discovery to obtain documents, require written answers to interrogatories, and conduct depositions of her and witnesses such as climate exaggerator Al Gore.
The deck is stacked, however, in favor of government abuse of First Amendment rights when administrative subpoenas are issued. In administrative subpoena enforcement proceedings, courts have prohibited discovery absent “extraordinary circumstances.” In SEC v. McGoff, the court showed how easy it is for these warrants to be used against critics of government, writing:
“Most Americans criticize their government at one time or another and many in a position to be heard do so regularly and harshly. If strong criticism of administration policy on the part of the target of an agency investigation were sufficient to authorize inquiry into the agency's motives, little would remain of the general rule that except in extraordinary circumstances discovery is improper in a summary subpoena enforcement proceeding.”
At a March press conference of “AGs United for Clean Power,” featuring climate venture capital barker Al Gore, Healey’s rhetoric about targeting climate dissent was supercharged: There’s “nothing more important;” it’s a “matter of extreme urgency;” and “this is about facts and information,” she said about her views on climate change.
Starting at around 33:30 of the videoed presser, Healey shows a zeal for her mission that should make Massachusetts residents concerned whether her priorities for public safety are a tad misplaced:
“As attorneys general, we have a lot on our plates: Addressing the epidemics of opiate abuse, gun violence, protecting the economic security and well-being of families across the country. All of these issues are so important. But make no mistake about it: In my view, there’s nothing we need to worry about more than climate change.”
Really? Nothing we need to worry about more than climate change? That may not sit well with victims of terrorist bombs in Massachusetts. Some climate exaggerators claim fossil fuel is more dangerous than terrorism.
In 2001 when climate change was “global warming,” Physicians for Social Responsibility released a report entitled “Death by Degrees: The Health Threats of Climate Change in Massachusetts.” While admitting “uncertainties exist in measuring global warming,” the report at page 4 under “How Global Warming Could Threaten Health in Massachusetts” warns of:
“More heat-related illness and death in Massachusetts. Deaths resulting from heat distress during a typical summer could increase 50 percent, from nearly 100 heat-related deaths per summer to over 150 fatalities with the predicted four to five degree rise in temperature over the next century.”
The trouble is, the report represents national data as Massachusetts data, and failed even to predict a decline in such deaths nationally. As reported by the National Oceanic and Atmospheric Administration: “In 2013, 92 people died as a result of extreme heat, down from 155 fatalities in 2012, well above the 10-year average of 123.” Nevada comprised 42 of them; Massachusetts, one. NOAA then reported: “In 2015, 45 people died as a result of extreme heat, up dramatically from the 2014 total of 20 but down from the 92 fatalities in 2013.” Nevada comprised 25; Massachusetts, none. The Physicians for Social Responsibility reporting about Massachusetts used misleading scare tactics.
Even among those who agree there is a correlation between use of fossil fuel and climate, “skeptics” have reason to believe the Exxon subpoena is more about ideology, government power, and cronyism than science or public safety. The Marxist roots of the green movement, after all, has spouted troubling theories including population control, that “all production is destruction,” and elimination of capitalism. Climate skeptics have reason to caution about policy proposed by proven ideological liars who have created a crippling national debt that will harm future generations, while ignoring existential threats of terrorism, and so on.
In response to the climate exaggerators, and particularly Al Gore and his enterprises, thirteen Republican state AGs issued a June 15 letter to “Fellow Attorneys General” warning that “to police the global warming debate through the power of the subpoena is a grave mistake,” and if climate speech “minimization is fraud, exaggeration is fraud.”
If climate exaggerators were to be targeted with unilateral subpoenas for their speech, maybe they’ll see why the Fourth Amendment was created for reasons that include protecting First Amendment rights.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."