Why It’s Time to Impeach Ken Cuccinelli


    Cross posted at Daily Kos

    The moment to impeach a public official is when they begin to represent a tangible threat to the very democracy they have been elected to serve.  This moment has come for Virginia Attorney General Ken Cuccinelli.

    There are a number of potential grounds upon which to make the case against Cuccinelli, who has spent his first year in office pursuing partisan goose chases rather than performing his job as the chief legal officer for ALL Virginians.  But I will focus on just one issue, the one that, I believe, is so utterly offensive to the American democratic tradition that it demands an equally aggressive rebuke.

    And that is his relentless pursuit of Professor Michael Mann and the University of Virginia, in a poisonously misguided effort to turn the threat some vested interests feel at the concept of climate change into an official state criminal investigation of a scientist for his research.  Cooch’s decision to appeal to the Virginia Supreme Court the rightful ruling of Judge Paul Peatross, who threw out Cooch’s baseless case against Mann, shows that a state official who will not listen to reason needs to be challenged himself.

    We are not talking here about politicians having policy differences and hashing them out fairly and squarely in the public arena.  Cuccinelli’s witch hunt against Mann escalates our political wars to the unheard-of level of actually criminalizing scientific research that threatens one’s donors.  Let’s be blunt here: we are talking here about an unprecedented act in American history.

    You have to go back to such historical abominations as the Catholic Church’s excommunication of Galileo, or the purges of Stalin’s science chief Trofim Lysenko to find rough precedents.  In American history, there are precious few examples of government actions against academia anything like Cooch’s crusade.  The closest that I could think of is the McCarthy era, when many intellectuals were harassed and intimidated for being real or alleged communists.

    At least Joe McCarthy’s paranoia was rooted in the genuine threat of Soviet and Maoist dictatorship and expansionism.  Cuccinelli’s attempt to sacrifice Mann to the gods of Big Oil and Big Coal, by contrast, is utterly unprovoked and inexcusable.  (For a summary of how Cooch’s actions in this case violate the US Constitution, see the amicus brief filed in August by the ACLU, Union of Concerned Scientists, American Association of University Professors and Thomas Jefferson Center for the Protection of Free Expression.)

    When public officials use the full power of the state to turn innocent individuals into scapegoats for the ruling political ideology, that is when the protective mechanisms of democracy need to kick in to prevent such injustices from going any farther. One such mechanism is found in Article IV, Section 17 of the Virginia Constitution, which states:

    The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.

    Now, no one is accusing Cuccinelli of a crime here, or the “high crime” of treason.  But malfeasance is another story.  

    What is “malfeasance”?  Black’s Law Dictionary is not much help here: “A wrongful or unlawful act; esp., wrongdoing or misconduct by a public official.”  A 1956 case in West Virginia, Daugherty v. Ellis helped flesh the concept out a little better:

    Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do.


    malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance.

    Cuccinelli’s efforts to disrupt the scientific work of Professor Mann and the University of Virginia are wrong, unconstitutional, outside his scope of authority and unquestionably an abuse of his power.  This is an impeachable offense.

    Will Democrats in the General Assembly have the courage to stand up to Cuccinelli in defense of the freedom of scholarship and inquiry at our state’s universities?   Let me just say that, if not, then they should ask themselves for what purpose they are bothering to hold public office.  If they are not there to fight fiercely for what’s right and against what’s wrong, then they ought to just give up and leave the field to someone who still gives a damn.

    This fight is worth pursuing even if the Republicans block every attempt the Democrats may make.  But Republicans also need to look themselves into the mirror and ask whether Cooch’s actions in this case are something which they are comfortable.  If Cuccinelli’s precedent in this case is allowed to stand, will they feel comfortable someday in the future when a liberal Democratic attorney general takes the same sort of action against a conservative academic researcher?

    Do conservatives really want to live in a country where the full legal force of the state can and will be applied against intellectuals for pursuing legitimate research?  And if so, does all their talk about “liberty” really amount to anything beyond empty bumper sticker slogans?

    Every once in a while, a wrongful act sticks out so blatantly to a majority of reasonable people that politicians are forced to act against it.   This has to be one of those times.  Liberty is too sweet a thing to be sacrificed to the partisan battles of the moment.  


    • …to put some pressure on, to raise awareness, to organize around, etc?  And no, let’s NOT count on the DPVA to do ANYTHING about this. If we want this done, we’re gonna have to do it ourselves (grassroots, netroots, activists, “we the people”).

    • Jim B

      I have lost hope that conservatives will do the right thing. They lie, cheat and practically steal to back their misguided view. “Cooch” is probably being cheered on by his followers.

    • blue bronc

      Although the odds of impeaching CH Cooch are nill, the project will be important.  Considering all the “what will he do?” and “Will he run for X?” articles and interviews showing up it looks like CH is going to unofficially be running for gov and senate and prez, concurrently.

      The impeachment project will be a constant thorn in his pronouncements because it will be a conflict the media will ask him about.  LTE’s, group meetings, social media and lots of media contact will keep this on the stove top.

      It should bubble up a lot given he does not get much other push back. Making sure that he can never say there is state wide support of his witch hunt and Inquisition.

    • to break out my old ‘IMPEACH’ signs from the Bush days.  

    • VADEM

      really like to see a list of his accomplishments or actually any real work RELATING to his job for which he is paid, not all the off the rails crazy stuff he does on the side. And I’d love to know how many hours a day he spends tending to the Virginia citizenship’s business–for which he gets paid to do. I’d also like to see his expense and travel accounts to see if when he spends our money it is for business for us, not the whackjobs and corporations he loves so much.

      Gee whiz, maybe a FOIA request could be filed by HEY our new DPVA chair. Or a dem senator.

      Some smart person needs to delve into his job performance thus far. Just sayin’.

    • AnonymousIsAWoman

      Would it be more productive to start a citizen recall effort rather than going the route of impeachment, which we actually know will not happen – we don’t have a majority in the HOD – even if we had Democrats with a backbone, which we also don’t have?

      Would this be more successful (even in terms of public relations and public education) to have it bubble up from the grassroots, especially if it could be a non-partisan issue sticking to the real principles of academic freedom so eloquently expressed here?

    • Tom

      As much as we’d all like to be circulating petitions for a recall of both the AG and the governor, there is no provision in the Va. state constitution for a recall, not even if the General Assembly were to vote to put it on the ballot.

      Also, there doesn’t appear to be any specific state constitution wording providing for impeachment of the AG. The AG is not even a part of the Executive Dept., wgich of course is why the governor has no constitutional authority to control the AG’s activities – McD can’t even file suit against the AG except as a private citizen so far as I know.

      It might be nice to initiate a recall petition, but I think Kooch would just laugh at that since he knows it has no legal standing and he’d view that as just giving him more free press coverage where he could make fun of the people signing the initiative.

      The more he says the more idiotic things we will have to use against him when he does begin his run for either U.S. Senate next year or for governor in 2013 (maybe both). At least he has managed to generate some bad publicity for Corey Stewart, to the point that Corey will probably run for the 2012 GOP U.S. Senate nomination at the same time Corey is trying to convince people to vote for him in the 2011 PWC BOCS chair primary. That’s the kind of stuff we can count on Kooch as the “gift that keeps on giving” on many levels.

    • VA Blogger

      I’m begging Virginia Democrats, grassroots movement or not, to make pushing for impeachment a priority for 2011.