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.

and

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.  

Impeachinelli!