Home Virginia Politics McEachin, Petersen, Toscano Take on Cuccinelli’s Anti-Academic Witch Hunt

McEachin, Petersen, Toscano Take on Cuccinelli’s Anti-Academic Witch Hunt


Excellent job by the Richmonder getting this press conference on video. Here’s Chap Petersen:

…I was very disturbed that we would have a situation which, what I would regard as a matter of academic inquiry — whether or not climate change exists, whether or not global warming exists – would be politicized to the extent that our Attorney General would be issuing what are in effect subpoenas to individual professors and individual departments to try and collect their research notes, their emails, and other things that have to do with their research as academics…to me, professors have to have the freedom to pursue subjects, to pursue viewpoints, and…we’ll make up our own minds.

Del. Toscano pointed out that there’s “broad scientific consensus, not just in this country but around the world, that climate change is real, and that human activity has a lot to do with it.” What Cuccinelli is doing, in Toscano’s view, is “pursuing this agenda to try to get at some things that can be used in a political way to discredit those who support the notion that there is climate change going on in this world.” Sen. McEachin added that “there is no civil lawyer…that has the ability to essentially issue a subpoena before articulating a cause of action.”

I’m very happy to see Sen. McEachin, Sen. Petersen, and Del. Toscano fighting back against Ken Cuccinelli’s wild – and wildly inappropriate – overreach of his office’s powers. It’s amazing, for a guy who talks so much about “tyranny” and reining in the government, how much Cuccinelli is doing it himself. Can we say “projection?”

  • kindler

    Sens. McEachin and Petersen, and Del. Toscano, I cannot thank you enough for showing the courageous leadership to stand up for all Virginians’ rights to academic freedom, and to be safe from capricious government harassment.  

    I encourage all members of the VA General Assembly to support this legislation — for Democrats, it ought to be a no-brainer, but for Republicans who want to protect free speech and the rights of conservative academics too, this is very important.

    Del. Toscano is absolutely right that Thomas Jefferson must be spinning in his grave right now.  Call your Senators and Delegates to save his university — and his Bill of Rights — from this unconstitutional and unAmerican campaign by Attorney General Cuccinelli.

  • Legislators Discuss Their Bills to Limit Attorney General’s Overreach and CID Authority; Chair of AAUP Government Relations Committee Expresses Their Dismay

    Richmond- Senator A. Donald McEachin (D-Henrico), Senator J. Chapman Petersen (D- Fairfax) and Delegate David Toscano (D-Charlottesville) held a press conference today to explain their legislation to limit the Attorney General’s Civil Investigative Demands (CID) authority. They were joined by Professor Brian Turner, chair of the Randolph-Macon Political Science Department and chair of the Government Relations Committion of the American Association of University Professors. Professor Richard Schragger, professor of law at the University of Virginia Law School who was unable to attend, sent a letter in support.

    Senator Petersen discussed his bill, sb 831, which would limit the Attorney General’s CID authority regarding academic inquiry and research. Senator Petersen said that academic research should not be politicized to the extent that subpoenas are issued. He added, “Professors have to have freedom to pursue subjects; students can make up their own minds whether they agree or not.” Under Senator Petersen’s bill, universities can still be investigated for fraudulent actions, simply not about research. “To access records, use FOIA,” Senator Petersen concluded.

    Delegate Toscano, who represents Charlottesville and the University of Virginia in the House of Delegates spoke of the privilege of holding the same seat that Thomas Jefferson once held. “However,” he said, “Mr. Jefferson would be turning over in his grave about what has occurred.” The Delegate stated that “those who love liberty, who are concerned about the power of the state, and about the overreach of government ought to embrace this legislation.”

    Senator McEachin’s legislation takes a different approach, removing this specific portion of the Attorney General’s CID power. “No other civil lawyer can issue a subpoena without a course of action,” Senator McEachin said. “If the attorney general wants to engage in these kinds of activities, he should file a lawsuit and show cause, just as any other attorney must do in a civil case.” He added that the attorney general’s actions are not at all consistent with the original intent of the legislation, to which Senator Petersen, who was in the General Assembly when those powers were granted, concurred.

  • January 17, 2011

    The Honorable Donald McEachin

    Senate of Virginia P.O. Box 396 Richmond, VA 23218

    Re: Legislation to Limit Authority to Issue Civil Investigative Demands

    Dear Senator McEachin:

    I write to applaud your recent efforts to limit the Attorney General’s use of Civil Investigative Demands (CIDs). A CID is a powerful tool and should be available when used for legitimate law enforcement purposes. But the legislature should carefully delineate the circumstances under which a CID can be issued to ensure that the subpoena power is not abused. In particular, the statutory guidelines for the issuance of a CID should prevent the Attorney General from using CIDs to undermine important First Amendment values, including the value of free scientific inquiry.

    As you know, Attorney General Cuccinelli issued a CID to the University of Virginia last spring that was overwhelming in scope. Asserting that he was investigating fraud in the procurement of state and federal grants to university scientists, Cuccinelli demanded a huge number of documents, e-mails, and notes from University scholars. Most of these document requests had nothing to do with Commonwealth grants. Mr. Cuccinelli never asserted why the materials were relevant.

    At that time, over 35 law professors at the University of Virginia School of Law signed onto a letter stating that “the Attorney General’s subpoena is a significant threat to academic freedom.” The letter further stated that:

    The possibility that a member of a university faculty could be investigated and prosecuted for his or her academic work will serve to chill free inquiry here at the University and in colleges and universities across the Commonwealth. The CID is an effective tool of intimidation because it appears not to require the Attorney General to make any factual showing of the need for its issuance. Indeed, to our knowledge the Attorney General has not made any such showing in this case. No lawsuit has been filed or prosecution initiated. There is thus no way for the University or individual faculty members to assess the potential charges against them nor any way of knowing if the request serves any proper purpose. In the absence of even a minimal showing that there may be a legitimate reason for this investigation, it is fair to question the Attorney General’s intentions. 2

    The University challenged the Attorney General’s CID and on August 30, 2010, Judge Peatross, Jr., sitting by designation, struck down the demand. The judge ruled that the Attorney General has to have “some objective basis to issue a civil investigative demand.” The judge further held that the Attorney General could not use the CID to investigate non-Commonwealth grants and had to describe with specificity the nature of the conduct that was the subject of the CID. The Attorney General subsequently issued a new CID to the University, but it still does not indicate what conduct the Attorney General contends is the basis for its issuance.

    As stated in the letter from Virginia’s law professors: “Prosecutors should tread very lightly in the realm of academic affairs, for forcing scholars to produce documents to government officials and answer interrogatories about the nature of their scholarly inquiries will surely lead to political control over the production of knowledge.” Attorney General Cuccinelli’s CID appears to be a concerted effort to undermine and intimidate scientists who are engaged in climate related scholarship. Cuccinelli has been open about his opposition to climate change research and is using his prosecutorial power to pursue that substantive agenda. This is an abuse of process and I applaud your efforts to constrain it.

    As the United States Supreme Court wrote in Sweezy v. New Hampshire, a case involving investigative demands made by New Hampshire’s State Attorney General:

    The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

    It is crucial for the legislature to specifically define and delineate the Attorney General’s powers to issue CIDs, particularly in the context of academic investigations. If scholars cannot feel confident that they will be shielded from political interference, scholarly initiative will decline, applications for grants to do research will not be produced, and professors will depart for other states. Prosecutorial overreaching is a threat to important First Amendment values. Your efforts to protect those values are greatly appreciated.


    Richard C. Schragger

    Professor of Law

    University of Virginia School of Law