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Shake Up in Subpoena Land

This week turned out to be a momentous one in the saga of the climate change subpoenas.  It started with three pending subpoenas from U.S. Virgin Islands Attorney General Claude Walker; it ended with none. In between there was a court hearing, but the demise of subpoenas had little to do with the hearing. And CEI still has a fight on its hands. We continue to pursue sanctions against Walker because of his flagrant violation of the First Amendment. Justice is still needed so that Americans do not have to fear intimidation when they disagree with government officials.

CEI was originally served with its subpoena on April 7.  The document was issued by AG Walker, who had a District of Columbia court clerk issue a DC version, which could then be served on CEI. The subpoena demanded a full decade’s worth of CEI’s work on climate change and energy policy, much of which would have contained confidential information on our donors. It was an outrageous violation of both our First Amendment right and those of our supporters, and CEI made it clear that it wouldn’t comply.

On May 13, in response to our objections, Walker’s local attorney informed us that they rejected our legal arguments, but they would withdraw the DC subpoena. Walker’s attorney gave us no decision about the underlying Virgin Islands subpoena, but she did note that Walker might reissue the DC subpoena if he changed his mind in the future. 

As far as we were concerned, this meant we still had a legal threat hanging over us. We moved for sanctions in DC Superior Court, which held a hearing this past Tuesday, June 28.  In opposing our motion, Walker’s local counsel argued that Walker was conducting an ongoing investigation of ExxonMobil for fraud, and that he had a legitimate interest in CEI documents. In a letter to the Wall Street Journal on June 24, 2016, Walker said that he was subpoenaing CEI for information “can shed light” on whether we “broke the law,” which is more than intimidation, it’s an accusation. This is all the more reason we are continuing to pursue sanctions against Walker. The judge stated that she’d be issuing a ruling in due time.

One day later, Walker announced that he was withdrawing his Exxon subpoena, as well as an accompanying one to Exxon’s public relations firm. And then the following day--Thursday, June 30--he announced he was withdrawing his Virgin Islands CEI subpoena as well.  We immediately informed the court of these developments, pointing out that the withdrawal of the Exxon subpoena was seriously at odds with what his attorney had told the court at the hearing.

So where does that leave us? Our case for sanctions against Walker is stronger than ever.  Even aside from questions of misrepresentation to the court, Walker’s decision to yank his subpoenas in the face of legal challenges indicates that he had no valid reason to issue them in the first place. And that makes the need for sanctions even clearer—because when a law enforcement officer breaks the law, it’s not enough for him to simply stop behaving badly.  A violation like this of the First Amendment needs to be paid for, because that’s the best way of ensuring that it doesn’t happen again.