Privately funded “special assistant attorneys general” (SAAGs) are presently working in at least six jurisdictions, under agreements that they focus on matters of importance to the billionaire donor paying their salary and benefits and regularly report back on their activities.
The donor is Michael Bloomberg, and his interest is “climate change.” This unprecedented arrangement raises questions not just of state law, but constitutional concerns that no legislature could waive, regardless of the benefactor or his wealth. I detail this scheme in a new report for the Competitive Enterprise Institute (CEI), “Law Enforcement for Rent: How Special Interests Fund Climate Policy through State Attorneys General.”
This paper, and the appendix with emails and attachments obtained under public records laws, detail this mercenary use of law enforcement powers, plainly in reaction to the global warming industry failing to achieve their goals the proper democratic process. Recall that after “cap-and-trade” legislation failed, President Obama’s Environmental Protection Agency responded by claiming it actually had the authority it needed, and pushed regulations instead.
The Supreme Court stayed EPA’s marquee proposed rule in February 2016. By April of that year, AGs had subpoenaed even CEI in the quest to impose a rejected policy agenda through the courts. Disgraced former New York attorney general Eric Schneiderman confessed that this campaign “step[ped] into this breach” left by others’ failure to act. That came in a March 29, 2016 press conference with Al Gore and nearly 20 AGs announcing a whatever-means-necessary campaign to use law enforcement in service of the climate agenda.
After that coalition collapsed under open records productions and subsequent media scrutiny, Bloomberg stepped up to underwrite a new effort to get the band back together. Last year he announced he would give millions of dollars to New York University, a “501(c)3” nonprofit organization, to supplement the staffs of numerous state attorneys general by privately funding “climate” prosecutors This ostensibly helps the AGs keep their discussions from the public, after the debacle transparency caused last time.
Ten AGs have successfully applied, and at least seven SAAGs are already at work in the AG offices of the District of Columbia, Maryland, Oregon, Washington state, Massachusetts, and of course New York. Last week, Bloomberg’s “Center” sent an email announcing funding to place three more such special prosecutors.
Inducements to join this seedy affair extend beyond paying for the lawyers, to an additional “pro bono” [sic] network of attorneys to further support AGs on this project, a PR staffer out of New York, and apparently a PR firm out of California to promote the AGs’ “leadership” on this. All of this is paid for by donors.
Key Revelations about This Scheme
Hiding in plain sight with a PR campaign announcing the scheme doesn’t make it legal. Key revelations of the report include the following.
- Senior AG attorneys flew to brief “prospective funders” of the green pressure group Union of Concerned Scientists (UCS) on “potential state causes of action against major carbon producers.”
- One presenter described this briefing as a “secret meeting.”
- It was secret enough that one AG litigated for a year and a half —under implausible claims of government privilege — before being compelled by a court to release the agenda for what was an AG-assisted fundraiser for its back-room counsel and strategist, UCS.
- Major donors played matchmaker between “climate” plaintiffs’ lawyers and AGs, leading to private slide shows recruiting for “a single sympathetic state attorney general [who] might have substantial success in bringing key internal documents to light.”
Pro bono does not always mean no one is paying them. For example, NYU is paying an attorney $125,000 per year for two years to work as “pro bono assistant counsel” in the Maryland AG’s office.
Every AG certified that it is legally authorized to allow privately funded prosecutors — provided by a highly interested, activist funder, specifically on issues of interest to the donor —generally without offering any support for the claim. The two AGs who produced records to CEI citing some actual authority pointed to laws that provide no such thing, and indeed appear to prohibit such a move.
Even were a legislature to authorize donors to commandeer law enforcement, they cannot waive constitutional protections, including of due process and separation of powers, both guarantees this arrangement appears to offend. Also, this is the second scheme we have found of donors and elected officials using nonprofits as “cutouts” to provide staff, consultant, PR and legal support for climate-activist officeholders.
Imagine If These Offices Were Investigating Abortionists
NYU insists the scheme is “bipartisan” and that any AG can apply, which is as sincere as a bipartisan plan to privately pay for attorneys general to investigate abortion providers: the successful applicant office must agree to use the additional prosecutors to “advance progressive clean energy, climate change, and environmental legal positions.”
It “seems wrong for an agency…to organize other plaintiffs to put pressure on an industry— even a distasteful industry—to achieve policy results the administration has not been able to achieve through normal legislation or regulation. It is an abuse of a valuable system, one that could make it less valuable as people come to view the legal system as nothing more than an arm of policymakers.”
That was the Washington Post in a 1998 editorial. More recently, it offered incurious coverage announcing Bloomberg’s move.
Consider a counterfactual, in which open-records requests revealed the National Rifle Association had flown in senior AG attorneys for what participants called a “secret” briefing for “prospective funders” of their campaign to support AGs investigating opponents of the Second Amendment. The busiest job in the world would be sitting on the Pulitzer committee for the journalists who discovered this story.
Using law enforcement as private mercenaries is unacceptable. It aims to undermine voters’ decision to reject their political agenda, and it uses public resources to target political opponents. “I’m the attorney general, and I say it’s okay” isn’t an argument, and it isn’t authority. Our report’s findings demand legislative oversight of this scheme.
Originally published at The Federalist