[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
AFFIRMING CONGRESS' CONSTITUTIONAL
OVERSIGHT RESPONSIBILITIES:
SUBPOENA AUTHORITY AND RECOURSE
FOR FAILURE TO COMPLY WITH
LAWFULLY ISSUED SUBPOENAS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
September 14, 2016
__________
Serial No. 114-92
__________
Printed for the use of the Committee on Science, Space, and Technology
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://science.house.gov
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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas
F. JAMES SENSENBRENNER, JR., ZOE LOFGREN, California
Wisconsin DANIEL LIPINSKI, Illinois
DANA ROHRABACHER, California DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas SUZANNE BONAMICI, Oregon
MICHAEL T. McCAUL, Texas ERIC SWALWELL, California
MO BROOKS, Alabama ALAN GRAYSON, Florida
RANDY HULTGREN, Illinois AMI BERA, California
BILL POSEY, Florida ELIZABETH H. ESTY, Connecticut
THOMAS MASSIE, Kentucky MARC A. VEASEY, Texas
JIM BRIDENSTINE, Oklahoma KATHERINE M. CLARK, Massachusetts
RANDY K. WEBER, Texas DON S. BEYER, JR., Virginia
JOHN R. MOOLENAAR, Michigan ED PERLMUTTER, Colorado
STEVE KNIGHT, California PAUL TONKO, New York
BRIAN BABIN, Texas MARK TAKANO, California
BRUCE WESTERMAN, Arkansas BILL FOSTER, Illinois
BARBARA COMSTOCK, Virginia
GARY PALMER, Alabama
BARRY LOUDERMILK, Georgia
RALPH LEE ABRAHAM, Louisiana
DARIN LaHOOD, Illinois
WARREN DAVIDSON, Ohio
C O N T E N T S
September 14, 2016
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Lamar S. Smith, Chairman, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 4
Written Statement............................................ 6
Statement by Representative Eddie Bernice Johnson, Ranking
Member, Committee on Science, Space, and Technology, U.S. House
of Representatives............................................. 10
Written Statement............................................ 12
Witnesses:
Mr. Jonathan Turley, J.B. & Maurice C. Shapiro Professor of
Public Interest Law, The George Washington University Law
School
Oral Statement............................................... 15
Written Statement............................................ 17
Mr. Ronald D. Rotunda, Doy and Dee Henley Chair and Distinguished
Professor of Jurisprudence, Chapman University Dale E. Fowler
School of Law
Oral Statement............................................... 45
Written Statement............................................ 47
Mr. Charles Tiefer, Professor of Law, University of Baltimore;
Former Acting General Counsel, U.S. House of Representatives
Oral Statement............................................... 62
Written Statement............................................ 64
Ms. Elizabeth Price Foley, Professor of Law, Florida
International University College of Law
Oral Statement............................................... 85
Written Statement............................................ 88
Discussion....................................................... 114
Appendix I: Answers to Post-Hearing Questions
Mr. Charles Tiefer, Professor of Law, University of Baltimore;
Former Acting General Counsel, U.S. House of Representatives... 152
Appendix II: Additional Material for the Record
Documents submitted by Representative Eddie Bernice Johnson,
Ranking Member, Committee on Science, Space, and Technology,
U.S. House of Representatives.................................. 156
Article submitted by Representative Frank D. Lucas, Subcommittee
on Space, Committee on Science, Space, and Technology, U.S.
House of Representatives....................................... 791
Articles submitted by Representative Randy Neugebauer,
Subcommittee on Space, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 795
Article submitted by Representative Mo Brooks, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 802
Article submitted by Representative Donald S. Beyer, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 807
Article submitted by Representative Warren Davidson, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 822
Documents submitted by Representative Paul Tonko, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 825
Article submitted by Representative Donna Edwards, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 834
Article submitted by Representative Barry Loudermilk, Committee
on Science, Space, and Technology, U.S. House of
Representatives................................................ 836
Article submitted by Representative Brian Babin, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 839
Documents submitted by Representative Gary Palmer, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 842
Documents submitted by Representative Ed Perlmutter, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 853
Article submitted by Representative Drain LaHood, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 856
Documents submitted by Representative Katherine M. Clark,
Committee on Science, Space, and Technology, U.S. House of
Representatives................................................ 860
Article submitted by Representative Bruce Westerman, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 880
AFFIRMING CONGRESS' CONSTITUTIONAL
OVERSIGHT RESPONSIBILITIES:
SUBPOENA AUTHORITY AND RECOURSE
FOR FAILURE TO COMPLY WITH
LAWFULLY ISSUED SUBPOENAS
----------
WEDNESDAY, SEPTEMBER 14, 2016
House of Representatives,
Committee on Science, Space, and Technology,
Washington, D.C.
The Committee met, pursuant to call, at 10:02 a.m., in Room
2318 of the Rayburn House Office Building, Hon. Lamar Smith
[Chairman of the Committee] presiding.
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Chairman Smith. The Committee on Science, Space, and
Technology will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
Welcome to today's hearing titled ``Affirming Congress'
Constitutional Oversight Responsibilities: Subpoena Authority
and Recourse for Failure to Comply with Lawfully Issued
Subpoenas.'' I am going to recognize myself for an opening
statement and then the Ranking Member for her opening
statement.
Today's hearing has dual purposes, one general and one
specific. First, this hearing will explore the scope of
Congress's investigative authority as a general matter. Second,
and in particular, this hearing will affirm the legitimacy of
the Committee's ongoing inquiry, which includes the issuance
and enforcement of its subpoenas.
Let me begin with the factual background. For months, the
Science Committee sent correspondence and requests for
voluntary cooperation and information from two state Attorneys
General and several environmental groups. After these requests
were stonewalled, on July 13, 2016, the Committee issued
subpoenas for information that relates to the origin of state
investigations into scientific research conducted by nonprofit
organizations, private companies, and individual scientists.
The Committee is concerned that such investigations may have an
adverse impact on federally funded scientific research. If this
is the case, it would be the responsibility of the Committee to
change existing law and possibly appropriate additional funds
to even out any such imbalances caused as a result.
So far, many of the subpoenas' recipients have failed to
meaningfully engage with the Committee or make a good-faith
effort to gather and produce responsive documents. In lieu of
cooperation, these recipients have provided a myriad of
spurious legal arguments. They say, for example, that the
Committee lacks authority to conduct this investigation; that
responsive documents would be privileged under common law or
state law; that the First or Tenth Amendments shield them from
having to comply with a Congressional subpoena; or that the
subpoena is invalid because it is vague and overbroad.
None of these arguments are persuasive. As we will hear
today, the Committee has the power to issue these subpoenas and
enforce their compliance. In fact, the Committee has a
constitutional obligation to conduct oversight any time the
United States scientific enterprise is potentially impacted.
The documents demanded by the subpoena will inform the
Committee about the actions of the Attorneys General and the
environmental groups. The documents also will allow the
Committee to assess the effects of these actions on America's
scientific research and development funding, and the documents
demanded will allow the Committee to assess the breadth and
depth of the AGs' investigations and inform our understanding
of whether their actions have a chilling impact on scientific
research and development.
Committee staff have repeatedly attempted to reach out to
every party to encourage cooperation and compliance with the
subpoena. The Committee wants the truth, Americans deserve the
truth, and the Constitution requires that we seek the truth.
The refusal of the Attorneys General to comply with the
Committee's subpoenas should trouble everyone sitting on this
dais, everyone in this room, and every American.
The question we explore today isn't partisan; it's
institutional. What is the scope of Congress' oversight powers?
Congress has an obligation and a Constitutional responsibility
to enforce its compulsory legal authority where warranted. To
the extent that this authority is blunted by parties' rejection
of lawfully issued subpoenas, all lawmakers, Republicans and
Democrats alike, should be concerned. Allowing subpoenaed
parties to ignore compliance based on the politics of the
subject sets a dangerous precedent. It diminishes transparency
and accountability and undermines Congress' Article I powers in
the Constitution.
I look forward to hearing about these issues from our
witnesses today. All are constitutional law professors with
outstanding expertise. They will address Congress's ability and
obligation to conduct rigorous oversight and the consequences
of allowing those who would like to evade inquiry to do so.
These consequences could include depositions, contempt
proceedings, and legal actions.
[The prepared statement of Chairman Smith follows:]
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Chairman Smith. That concludes my opening statement, and
the gentlewoman from Texas, the Ranking Member, is recognized
for hers.
Ms. Johnson. Thank you, Mr. Chairman, and good morning.
I must say that I am disappointed and disheartened to be
here today. Congressional oversight is critically important. It
is a fundamental function of our government, and it helps to
root out cases of waste, fraud, abuse and mismanagement in
federal government. When Congressional oversight is done right,
it can help to effect profound positive changes in our society.
Since the Science Committee was first established 58 years
ago, it has traditionally used its legitimate oversight
authority and its investigative tools effectively, identifying
technical challenges and helping to resolve real problems,
often in a bipartisan manner.
But this has changed recently. Today the Majority seems to
view its oversight powers as a political tool and the
Committee's investigative authority as unbounded. This hearing
appears to be the culmination of a politically motivated
oversight agenda that has been applauded by oil, gas, and
mining interests and broadly condemned by the public, the media
and the independent scientific community across the country and
around the world. The Committee Majority has abused the
Committee's oversight powers to harass NOAA climate scientists,
going so far as to threaten former NASA astronaut, and current
NOAA Administrator Kathy Sullivan, with contempt, all in an
attempt to undercut the notion of human-caused climate change.
The Chairman has issued subpoenas in a reckless attempt to
obtain the health records of hundreds of thousands of American
citizens so they could be provided to tobacco industry
consultants--all part of some bizarre attempt to disprove the
notion that air pollution is bad for people's health. The
Chairman has also demanded documents and testimony from the EPA
in a naked attempt to assist a foreign mining company in their
active litigation against the U.S. government.
That brings us to the latest embarrassment to this
Committee in the name of oversight: the Majority's brazen
attempts to assist ExxonMobil in the face of legitimate fraud
investigations by various Attorneys General. The Majority has
claimed that their investigation is about protecting the First
Amendment rights of ExxonMobil. However, the law is clear:
fraud is not protected by the First Amendment. If any companies
in the oil industry defrauded the public or their shareholders
in their well-documented disinformation campaign on global
warming, then that is a matter for the state Attorneys General
and the courts, not the Committee on Science.
I also want to take a moment to highlight the irony in the
Chairman's nine subpoenas issued to various NGOs. In his stated
attempt to protect ExxonMobil's supposed First Amendment
rights, the Chairman is unequivocally violating these groups'
First Amendment rights to petition the government. I hope all
the members of the Majority think long and hard about the
precedent the Chairman is setting here, and whether you'd like
Democratic members to take these same kinds of actions against
certain conservative-minded groups when Democrats are in the
Majority.
I look forward to hearing from Professor Charles Tiefer,
who worked as the General Counsel for the House of
Representatives for 11 years, who can help us understand the
clear limits to the Committee's legal authority to interfere
with ongoing investigations by state law enforcement agencies.
The Majority's misguided efforts undermine the Science
Committee's important and legitimate oversight authority, and
dramatically increase the public's distaste and distrust of
this body. That is extremely troubling, particularly at a time
when we are confronted with critical scientific and
technological challenges affecting the health and safety of the
public, the sustainability and diversity of our environment,
and the security of our nation and our neighborhoods. These are
the issues the Committee should be overseeing, exploring and
investigating.
In closing, let me be clear. The Majority's actions are not
without consequence. Public contempt for the Committee's recent
actions may hinder our ability to effectively conduct
legitimate oversight in the future. I hope that members of the
Majority will take a moment to contemplate the lasting damage
to this Committee and to this Congress that will result if we
continue down the path we are currently on.
Lastly, I would like to enter the Committee's
correspondence on this issue into the record. It is not only
important that the public hears what you have to say and what I
have to say on this subject but I believe it is important the
public gets to hear what the nine non-governmental
organizations, or NGOs, that utilized their constitutional
right to petition the government and the two state law
enforcement agencies that are investigating ExxonMobil for
potentially defrauding its investors have said about this
subject and the Committee's subpoenas to them. I want to submit
the letter from the Attorney General of Maryland to the record.
Thank you. And I yield back.
[The prepared statement of Ms. Johnson follows:]
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Chairman Smith. Without objection, so ordered.
[The information appears in Appendix II]
Chairman Smith. Thank you, Mrs. Johnson.
Let me introduce our witnesses, and our first witness today
is Jonathan Turley, a Professor of Public Interest Law at the
George Washington University Law School. Professor Turley is a
nationally recognized legal scholar who had written extensively
in areas that range from constitutional law to legal theory to
tort law. He's also worked as a consultant on homeland security
and constitutional issues and served as counsel in some of the
most notable cases in the last two decades. These include
representing Area 51 workers at a secret air base in Nevada,
the nuclear couriers at Oak Ridge, Tennessee, and four former
U.S. Attorneys General during the Clinton impeachment
litigation. Professor Turley received his bachelor's degree
from the University of Chicago and his law degree from
Northwestern University.
Our next witness is Ronald Rotunda, Distinguished Professor
of Jurisprudence at Chapman University School of Law. Mr.
Rotunda previously served as Special Counsel at the Department
of Defense and is a Senior Fellow in constitutional studies at
the Cato Institute. Additionally, he served as Commissioner of
the Thayer Political Practice Commission in California, a state
regulatory agency and California's independent political
watchdog. Mr. Rotunda's multitude of published works have been
cited more than 1,000 times by state and federal courts at
every level from trial courts to the U.S. Supreme Court.
Professor Rotunda received both his bachelor's degree and his
law degree from Harvard University.
Our third witness is Professor Charles Tiefer, a Professor
of Law at the University of Baltimore, and Former Acting
General Counsel of the U.S. House of Representatives. Mr.
Tiefer previously clerked as a law--served as a law clerk for
the DC. Circuit and Associate Editor of the Harvard Law Review,
a Trial Attorney with the Civil Rights Division of the U.S.
Department of Justice, and as Assistant Legal Counsel for the
Senate. Professor Tiefer received his bachelor's degree from
Columbia College and his law degree from Harvard University.
Our final witness is Professor Elizabeth Price Foley, a
Professor of Law at Florida International University College of
Law. She also serves as Of Counsel for Baker Hostettler LLP,
where she practices constitutional and appellate law. Professor
Foley is the author of numerous journal articles and op-eds in
constitutional law and has penned three books on the topic. She
serves on the editorial board of the Cato Supreme Court Review,
on the Research Advisory Board of the James Madison Institute,
and as a member of the Florida State Advisory Committee of U.S.
Commission on Civil Rights. Professor Foley received her
bachelor's degree from Emory University, her law degree from
University of Tennessee College of Law, and her master's in law
degree from Harvard Law School.
We welcome you all. It's nice to have this expertise
present today.
And Professor Turley, we'll begin with you.
TESTIMONY OF MR. JONATHAN TURLEY,
J.B. & MAURICE C. SHAPIRO PROFESSOR
OF PUBLIC INTEREST LAW,
THE GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL
Mr. Turley. Thank you, Chairman Smith, Ranking Member
Johnson, Members of the Committee. Thank you for the honor to
address you today. It's also an honor to appear before you with
my colleagues and friends, who are the only four people I know
of that find subpoena power under Article I to be an exciting
subject, and so on behalf of my fellow constitutional dweebs,
we thank you.
But at the outset I should note that I've been a long
advocate for action on combating climate change. Indeed, one of
the reasons I voted for President Obama back in 2008 was his
position on this issue, but I am called not to give scientific
testimony but to give constitutional testimony, and indeed, the
question before this Committee should turn on how one views the
ultimate wisdom of an investigation or the merits of climate
change, it should turn on the Constitution.
There are novel questions raised here, an intermix of the
Tenth Amendment, First Amendment, statutory issues that are
very difficult. In fact, I told the Chairman just now that
every time I'm called, the problems seem to get tougher, or I
must just be getting older, but this is a tough question, and
there are very difficult issues on both sides. However, I have
to say in all honesty the suggestion that there is a threshold
barrier to the enforcement of the subpoenas by this Committee I
believe is fundamentally flawed. This Committee clearly has the
ability under Article I to insist on compliance with its
subpoenas.
Indeed, I think that for public interest groups, many of
which I support, the arguments go too far, and for these
groups, this amounts to sawing off the branch or sitting on it
because, you know, the arguments being made against the
Committee are the same arguments that were made against the
original investigation in terms of countermanding free speech,
associational rights and the like.
Legislative authority means nothing unless committees can
understand and at times uncover insular actions by institutions
or organizations that affect federal law and policy. The
Supreme Court has repeatedly emphasized that, and the case in
McGrain is a very good example, McGrain versus Daugherty. The
Supreme Court said it understood that information is not always
volunteered, it's also not always accurate or complete, and
that committees need to be able to acquire the information
needed to conduct its work.
In Wilkinson and other cases, the Supreme Court said that
it does not delve into motivations behind committees because
that's a slippery slope that the apolitical courts do not feel
comfortable in exploring. Many subpoenas will in fact touch on
political decisions and associational ties. That's the nature
of Congressional investigations. As I say in my testimony, the
three factors laid out in Wilkinson, the broad subject matter
of an area being authorized, the valid legislative purpose, the
pertinence to such broad subject matter in my view is well
established in this case. I don't see the basis for a challenge
on those issues.
Putting aside that you have a disagreement with what the
investigation is concerning, for people that object to these
individuals, they're making the same types of arguments that it
is in fact the state Attorneys General who are intervening and
threatening the First Amendment. For those they feel that this
is analogous to the McCarthy period, so both sides are raising
these McCarthy-era cases and saying that the other side is
pursuing critics. For those scientists and companies, they feel
like they're being accused of unenvironmental activities
instead of un-American activities, and for them, they fear
that, you know, the questions amount to are you and have you
ever been a climate change denier. Now, obviously I don't think
that either side of this Committee wants to return to that very
dark period of the Red Scare, and I don't think that the state
Attorneys General are trying to do that. I do think that they
have been incautious. I do think that what they have done
contravenes academic freedom and free speech, even though I
agree with their position on climate change.
So I would suggest to the Committee that I do not see a
threshold objection that can be made on the basis of these
being state Attorneys General or environmental groups. There
are absolute questions that have been raised, threshold
immunities and protections, that I believe are poorly
supported. To put it simply, that dog won't hunt, in my view.
Now, that doesn't end the question. The constitution only
protects us from unconstitutional choices, not bad choices, but
if we can strip away the rhetoric, we might be able to get into
some type of resolution and preferably a compromise so that
this doesn't end up in litigation and then cooler minds might
prevail in the debate over global warming.
Thank you very much.
[The prepared statement of Mr. Turley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you, Professor Turley.
And Professor Rotunda.
TESTIMONY OF MR. RONALD ROTUNDA RONALD D. ROTUNDA,
DOY AND DEE HENLEY CHAIR AND
DISTINGUISHED PROFESSOR OF JURISPRUDENCE,
CHAPMAN UNIVERSITY DALE E. FOWLER
SCHOOL OF LAW
Mr. Rotunda. Thank you for inviting me.
Last spring, the Attorney General of New York, 16 other
Attorneys General, all of them Democratic except for one
Independent, announced they're going to investigate global
warming. At the press conference, Eric Schneiderman said that
the bottom line was simple: climate change is real, it is a
threat. Meanwhile, Senator Whitehouse has encouraged the
Department of Justice to investigate it and institute grand-
jury investigations and possible criminal prosecution.
Now, I assume that global warming is real, and humans cause
it. That still does not justify criminal prosecution of those
who seek to prove the contrary. If you think the science is
wrong, then attack the science, not the messengers.
First, the Committee needs to find out what's going on on
the state level so they can recommend appropriate legislation.
This is--Representative Johnson said this is a matter for the
courts. Of course it's a matter for the courts, the Department
of Justice, but it's also a matter for this Committee. In fact,
if Congress cannot investigate things like this, the Senate
Watergate Committee would never have gotten off the ground. I
was Assistant Majority Counsel there, and we were investigating
things that were also--could be before the courts, could be
investigated by the Department of Justice, but we didn't think
they were.
At the press conference, Mr. Schneiderman had next to him
Vice President Gore, who stood proudly in saying that we can't
allow these fossil fuel industry and people investigating to
mislead the public about the health of our planet. Recently
leaked documents show that George Soros is a major funder of Al
Gore to the tune of $10 million a year for three years to his
Alliance for Climate Protection. The American people really
have a right to know and this Committee has a right to know to
see if they should enact appropriate legislation, if Mr.
Schneiderman is working on his own or is he part of a corrupt
deal with some of these climate groups and George Soros. In
fact, in one of those investigations, one of the parties has
asked for any common interest agreements he has with private
activists. Mr. Schneiderman refuses to comply. People that
don't comply with subpoenas have something to hide. That's why
they don't comply.
As I mentioned in my written statement, Professor Jerry
Mitrovica of Harvard said he likes investigating the climate of
3 million years ago or more because he said that's safer from
the politically charged scientific atmosphere we have now. That
should be scary with all of us that scientists including this
one who believes in global warming, apparently is worried about
not giving the politically correct answer.
The state prosecutor's inaction and refusal to comply with
subpoenas reminds me of the biblical verse about the person who
saw the mote in his brother's eye while ignoring the beam in
his own eye. That beam may well be billionaire George Soros.
Now, my second major point is that the government has
repeatedly been wrong about what is scientific truth. That
should give you a little bit of pause when you say you should
investigate to see if other officials, in this case state
officials, are interfering with scientific inquiry. There's the
old saw about the three lies of the 20th century: the check's
in the mail, I'll love you just as much in the morning, I'm
from the government and I'm here to help you. Then there's the
three lies of the 21st century: My BMW is paid for, this is
only a cold sore, and I'm from the government and here to help
you. Some things never change, and that last statement never
changes. The government suffers from the fatal conceit that it
knows what's best and will refuse to reply to the subpoenas to
tell us what's going on.
Now, the government's been wrong before. In 1991, the World
Health Organization said that coffee was a possible carcinogen
and you should avoid drinking it. They repeatedly warned us
about the cancer risk. We kept drinking coffee. Starbucks added
new coffee houses about as fast as rabbits multiply. Starbucks
never publicized the WHO findings--the World Health
Organization--and now WHO says, sorry, we made a mistake.
Forensic evidence--for decades, state and federal
governments have assured us with all the certainty of New York
Attorney General Schneiderman, assured us about global warming.
They're assured us that their scientific and forensic analysis
is trustworthy. The government's prosecutors including Mr.
Schneiderman routinely introduce scientific evidence. Now we
know they may well be wrong. The President's Advisory Council
says that it's become increasingly clear that lack of rigor in
the assessment of the scientific inquiry in forensic evidence
is not just a hypothetical problem but a real one. Maybe Mr.
Schneiderman should investigate that in his home state.
Oh, my time is almost up and I have so much more to say,
but we've been wrong about whole milk. People followed the food
pyramid. They cut back their use of wheat, eggs, red meat. That
dropped 17 percent or more, and diabetes doubled, and we now
find out that some of those things are actually good for you.
In the 1970s, scientists were unequivocal, many of them were
unequivocal, there's going to be global cooling, the next Ice
Age. They may be right, but it's like a stopped clock. If you
say enough, eventually you're right about something.
Thank you very much.
[The prepared statement of Mr. Rotunda follows:]
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Chairman Smith. Thank you, Professor Rotunda.
And Professor Tiefer.
TESTIMONY OF MR. CHARLES TIEFER,
PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE;
FORMER ACTING GENERAL COUNSEL,
U.S. HOUSE OF REPRESENTATIVES
Mr. Tiefer. Thank you for the opportunity to testify today.
I served in the House General Counsel's Office for 11
years, becoming General Counsel of the House of
Representatives. Since then I have been a Professor at the
University of Baltimore School of Law. So I have lengthy, full-
time experience in the House including extensive work on
Congressional subpoenas and contempt. I stood behind the dais
of committees like this many, many, many times, which few
others have done, advising chairmen on the legitimate lawful
use of Congressional oversight authority. I note that I've kept
my hand in in testifying in a bipartisan way. Chairman
Sensenbrenner called me as a lead witness in a hearing. I was
Chairman Issa's lead witness in a hearing.
So no House committee has ever tried nor should ever try to
enforce subpoenas against state Attorneys General. I can say
none has ever tried based on extensive firsthand experience of
mine, the literature on investigations, and all the research
for this hearing.
The Committee has failed to identify even one single House
subpoena enforcement in 200 years to a state attorney general.
The reason: It's never happened. Never.
Today, a House committee with no precedent is going
squarely against a key component of state sovereignty. Consider
also that the only enforcement route is statutory criminal
contempt of Congress under 2 U.S.C. 192, inherent contempt,
meaning that the House itself acts as a court and holds a trial
itself is a nonstarter. There's not been inherent contempt
since 1935.
There's another rare, specialized kind of matter, non-
statutory contempt. It's been done for two executive officials,
Myers and Holder, but these went ahead because the claim which
was their claim of federal executive privilege rendered these
unsuitable for regulatory statutory methods that simply don't
apply to states. There could never be contempt enforcement,
criminal contempt enforcement, by the Justice Department or by
courts against state Attorneys General.
Now, I want to say that the gravamen of today's state
Attorney General investigations is that ExxonMobil made
statements to investors about the absence of climate risk while
meanwhile they had files of scientific studies in their own
offices showing the perils. So the Exxon statements conflicted
factually and materially with the company's own extensive
record of research. It was a climate peril they knew about and
lied about that state Attorneys General investigating. The
supposed constitutional rights explanation by the Majority,
that the people in Exxon's pay, in Exxon's offices were
exercising First Amendment rights is without merit. Fraud
investigation is the legitimate bread and butter of state
Attorneys General, and fraud is not protected by these rights.
I might note that the New York Attorney General who is taking
the lead here has special statutory authority called the Martin
Act to proceed against misleading investors in this way.
The Committee has also issued extremely broad subpoenas
against environmental groups. These are groups that petition
state agencies regarding potential fraud by ExxonMobil
involving statements about climate change. Statements, I might
note, that were covered extensively by the Los Angeles Times
last year. Traditionally, broad subpoenas have not been
enforceable against advocacy groups. The rights of such groups
of free association would be negated by such broad subpoenas.
The key precedent, protecting such advocacy groups, is Gibson
versus Florida Legislative Investigative Committee. The key
group protected by these cases was the NAACP. There's a clear
parallel between the rights of the NAACP then and the rights of
environmental groups now.
The Science Committee's own authority is over federal, not
state, federal scientific ``government activities.'' Same clear
limits on its jurisdiction apply to subpoenas to Attorneys
General and subpoenas to environmental groups.
In conclusion, the Science Committee cannot and should not
try to enforce subpoenas against state Attorneys General or
environmental groups looking into climate risk fraud.
I yield back the balance of my time, Mr. Chairman.
[The prepared statement of Mr. Tiefer follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you, Professor Tiefer.
And Professor Foley.
TESTIMONY OF MS. ELIZABETH PRICE FOLEY,
PROFESSOR OF LAW,
FLORIDA INTERNATIONAL UNIVERSITY
COLLEGE OF LAW
Ms. Foley. Mr. Chairman, Ranking Member Johnson, Members of
the Committee, thanks very much for the opportunity to speak
about enforcing Congressional subpoenas. I think it is a
particularly important topic because I'm sure you've noticed
that respect for Congress, particularly its subpoenas, is at an
all-time low, and I think one of the reasons that this is the
case is because Congress in the last few years has sort of
increasingly ceded its power to an increasingly aggressive
executive branch, and this has upset the Constitution's
delicate balance of powers. Regardless of whether one likes the
President, the current President or any future President,
aggrandizement of executive power is just not good for our
constitutional republic.
My primary message for you today is that self-help should
not be considered a last resort for Congress in any matter
including the enforcement of its subpoenas. This is because
Congress is a coequal branch to the executive and the
judiciary, and so self-help should arguably be its first resort
whenever it's possible. Congress shouldn't be dependent upon
the other branches to enforce its subpoenas. If it is, it
suggests that this dependency means that Congress is not a
coequal branch, it also suggests that it is a weak branch and
it insults the dignity of the institution.
My written testimony details the three different ways that
Congress can enforce its subpoena. There's an inherent contempt
authority, there's the possibility of criminal contempt
proceedings, and there's the possibility also of civil
proceedings, and of these three possibilities, I believe that
Congress should focus on reinvigorating its inherent contempt
authority. While Congress has not relied on this inherent
authority since 1934, it has strong and unquestioned
constitutional validity.
The other two methods of enforcing Congressional subpoenas,
the criminal process and the civil process, have one common
deficiency: they both require Congress to rely on a prior
blessing from one of the other two branches. So for example,
civil contempt proceedings require pre-enforcement scrutiny by
the judicial branch and ultimately that branch's blessing. It
takes many years of litigation, especially if appeals are
involved, and many taxpayer dollars will be spent.
The criminal contempt proceedings likewise are bad because
they require not only the blessing of the judicial branch but
also the executive branch. First you have to have the U.S.
attorney agree to initiate a grand jury proceeding. If that
happens, then you also have to go to the judicial branch, and
in this context, the judicial branch is required to very
closely scrutinize Congress's subpoena power because there's a
panoply of specific rights that attach in criminal proceedings.
This criminal contempt process costs even more taxpayer dollars
and takes even longer than the civil enforcement process.
It's only Congress's inherent contempt power that allows
Congress to go it alone, to enforce its subpoenas without the
blessing of the other branches of government. Inherent contempt
is faster, it's more efficient, it's less costly, and it's
perfectly constitutional. It also allows Congress to reassert
itself in a way that I think is very badly needed today.
I should also note that as I've detailed in my written
statement, there's a potential hybrid method of enforcing
Congressional subpoenas that honestly has never been tried
before but may be worth considering. The Supreme Court's
precedent in a case called Nagel versus Cunningham said that
Congress can use the resources of the executive branch in
helping the other branches of government--the judiciary and,
here, Congress--in carrying out its constitutional authority.
In particular, what Congress could do is invoke its inherent
contempt authority and then use the Nagel precedent to require
the President, the executive branch, to use the resources of
the U.S. Marshal, which was what was involved in Nagel, to
arrest and detain the contemnor pending the proceeding of a
House proceeding at the bar. In this particular way, if we use
Nagel, we might be able to invoke inherent contempt power and
use the aid of the executive branch, but it wouldn't require
the approval of the executive branch the way it does with
criminal contempt. Anyway, that's food for thought.
Let me spend the rest of my limited time on the federalism
objections that have been voiced to this Committee's subpoenas.
The Supreme Court's decision in Garcia made it clear that the
Tenth Amendment has no judicially enforceable content, and what
this means is that states' rights are considered by the Court
to be adequately protected by the very structure of the federal
government. Think about how Congress is structured: two
Senators from both--from each state and then apportionment in
the House based on state population. Now, post-Garcia, what the
Supreme Court has done is develop two specific federalism
doctrines that try to refine its federalism analysis. The first
one is called the anti-coercion doctrine. I won't waste time on
it here because it hasn't been invoked by the state AGs. But
what they have invoked is what's called the anti-commandeering
doctrine, and this is evinced in cases like New York versus
United States and Prince versus United States. What this
doctrine holds is that Congress cannot commandeer state
executive or legislative branches and force those branches to
carry out a federal regulatory program. If Congress wants to
carry out a federal regulatory program, it has to do so by
itself. It has to preempt state law and then it has to use its
own resources and its own employees to carry out that federal
program. What Congress cannot do under the anti-commandeering
doctrine is conscript state employees to do the federal
government's work. That is the anti-commandeering doctrine, and
it presents absolutely zero impediment to a legitimate
Congressional subpoena. If a Congressional subpoena is in fact
valid, meaning that it seeks information that is relevant to a
legislative inquiry, there simply is no federalism objection
that can stop that Congressional subpoena.
I see I'm out of time almost, and I'd like to talk to you a
little bit about the First Amendment objections that have been
raised, but I'll do so in the context of the questions.
[The prepared statement of Ms. Foley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Smith. Thank you, Professor Foley.
Professor Turley, let me address my first question to you
and say I know it wasn't easy to be here but I appreciate the
integrity it took to appear.
Let me quote a sentence from your testimony that
particularly was impressive to me. You said this Committee
clearly has the authority under Article I of the Constitution
to demand compliance with its subpoenas. You said what you did
about favoring what the Administration wants to do in regard to
climate change but said that that was your personal opinion,
you're here to talk about the Constitution. So I appreciate
your supporting what the Committee is trying to do, but my
question is this: When we have parties, the AGs or others, who
refuse to comply with our subpoenas, what recourse do we have?
What remedies do we have? Professor Foley mentioned several. I
was going to get your take on that same subject.
Mr. Turley. Thank you, sir. I actually testified not long
ago in the Judiciary Committee about the same issue that
Elizabeth talked about, which is the erosion of Congressional
authority, which I consider quite alarming within our system.
It didn't just start with the Obama Administration. It's a long
erosion of Congress and its ability to force agencies and
others to comply with subpoenas. Part of that is due, in my
view, to the Justice Department failing to enforce contempt
powers, and I said this for over a decade: I do not know why
Congress has allowed the Justice Department to be so
obstructionist in the enforcement of contempt of Congress, and
that is not unique to this Administration. I made this same
objection during the Bush Administration.
The most obvious response of the Committee if groups are
refusing to comply with subpoenas would be statutory contempt.
There is of course inherent contempt, which has never been
rejected by the Supreme Court, but the important thing is that
Congress needs to respond. Otherwise they're playing with their
own obsolescence. You are becoming increasingly a decorative
element in this system of government when you have agencies and
others saying we're just not going to comply. These groups may
have legitimate objections to make on the scope of your
subpoenas but they have to comply with them and raise those
objections and try to reach a compromise, and that's how it's
been done in the past.
Chairman Smith. And you would stick with contempt as a
recommendation then, as a----
Mr. Turley. That's the most obvious response of a committee
when someone refuses to comply.
Chairman Smith. Thank you, Professor Turley, and Professor
Rotunda, in a recent opinion piece for justia.com, you assert
that the actions of the Attorneys General investigations is an
attempt to chill scientific inquiry regarding climate change.
Could you explain why you reached that conclusion?
Mr. Rotunda. Well, one of the examples is Professor Jerry
Mitrovica at Harvard. He's been studying--he said he prefers
studying the Pliocene Age 3 million years ago because he said
that seems to be politically safe, and he's gotten concerned
about political repercussions and prosecutions when some of
what happened 3 million years ago is relevant today. For
example, he tells us that in the last 2,000 years, there's been
virtually no change in the sea level on the Italian coast, and
he has an explanation of how he discovered this. During that
period, we had a medieval warm period and a mini ice age, a
little ice age, and yet we're--it doesn't go up and down. It's
been about the same for at least 2,000 years. He'd like to know
what's going to happen in the future, and he says that we are
concerned, he says, that this will raise political controversy.
He's shown by his mathematical models that if Greenland's ice
sheet melted entirely, sea level would fall 20 to 50 meters off
the adjacent coast of Greenland with sea levels dropping as far
as 2,000 kilometers away. This would help Holland and the
Netherlands rather than hurt it. But he says he's concerned
that there would be political repercussions.
So we've gotten into a world in which scientists say you
know, I better either come up with the right answer or go to a
different answer because I'm going to be subject to a lot of
subpoenas. There's the threat of criminal investigation and
indictments, and that means we're not getting the science for
the money. You give out these grants and you're not getting
objective science.
Chairman Smith. That is exactly what we're concerned about.
Professor Foley, I appreciate your testimony. Let me get
your opinion on something. Why do you think the Attorney
General refusing to comply with our subpoenas, do you think
that their objection is grounded in law or do you think it's
more political?
Ms. Foley. Well, I don't actually see a valid legal
objection to the subpoena itself. As Professor Turley
suggested, if they have privileges that they want to assert,
which is common in the Congressional subpoena context, those
are generally resolved by negotiation by the committee. The
Committee, for example, does not have to honor, if it doesn't
want to, any state law-based privilege including the attorney-
client privilege and the work product privilege, which are the
two that are being raised by the state Attorneys General here,
and the only one that Congress does have to honor are
constitutional-based privileges such as the Fifth Amendment
privilege against self-incrimination.
So considering the fact that there has not yet been that
negotiation regarding those privileges and that there is no
valid federalism objection here, it seems to me that the only
explanation reasonably is politics.
Chairman Smith. Okay. Thank you, Professor Foley.
That concludes my questions, and the gentlewoman from
Texas, Ms. Johnson, is recognized for hers.
Ms. Johnson. Thank you very much, Mr. Chairman.
Let me start with Professor Tiefer. I've been serving on
this Committee over 23 years. It'll be 24 at the end of this
term. In that time, I've seen a lot of Congressional
investigations come and go but I've never seen a committee
attempt to subpoena a state attorney general.
You mention in your testimony just how unprecedented the
Chairman's actions are in this regard. Could you please comment
on just how unusual this is and also what that implies about
the validity of the Chair's subpoenas?
Mr. Tiefer. Thank you, Ms. Johnson.
I do not--there hasn't been a subpoena enforcement against
a state attorney general in 200 years, and I may note because
you might think well, new things happen, this is--there was--
you go back to the beginning of Congress, there were
Congressional investigating committees and there were state
Attorneys General and they were very often, very often of
opposite political parties so if the Congressional committees
thought that they could subpoena Attorneys General, then during
those 200 years they would have. They're not doing it, and
there's an excellent reason. State Attorneys General have their
own state sovereign authority. They are frequently elected.
They have their own base, their own electoral base, their own
mission, and their mission is to pursue things that Congress
can't.
So in a word, it's unprecedented to enforce against state
AGs.
Ms. Johnson. Thank you. I have also never seen a committee
attack with compulsory processes a group of non-governmental
organizations the way this Committee has attacked the nine
environmental NGOs the Chairman has subpoenaed. In my own mind,
I have to go back to the Red Scares of the fifties to recall a
similar effort.
Could you comment on how unusual it is for us to subpoena
these type of NGOs for no other apparent reason than they
disagree with the Chair's position on climate change?
Mr. Tiefer. As House Counsel investigating committees would
come to us and talk with us about what they should do, and if
they ever had said we want to do broad subpoenas against such
groups, I would have pointed out that the Supreme Court
precedent, Florida versus--excuse me--Gibson versus Florida
Legislative Investigating Committee, made quite clear that
you'd be violating these groups' freedom of association by
trying to subpoena like that. That's what I would have told
them.
Ms. Johnson. Thank you.
Now, let me ask you, in Professor Foley's testimony, she
writes that the Science Committee may issue subpoenas, and I
quote, ``when authorized by the majority vote of the Committee
or Subcommittee as this case may be, a majority of the
Committee or Subcommittee being present.''
As I believe you know, that has not been true for some time
on this Committee. The Chairman of the Science Committee was
granted unilateral subpoena power this Congress. We have not
had a vote or a meeting of any more than--for any of the 20 or
more subpoenas that the Chairman has issued.
Now, you spent 11 years working in the House Counsel's
Office and three years in the Senate Counsel's Office. You
dealt with reviewing subpoenas often. Based on your experience,
do you think that the unilateral subpoena power the Science
Committee currently has is a positive thing for Congressional
oversight authority?
Mr. Tiefer. Absolutely not. It's one thing to issue a
friendly subpoena to a group that just says please, we need a
piece of paper, but--and have a chairman alone do that, but
when you're going to issue controversial subpoenas like these,
very controversial, and start talking about contempt, we would
all--we always said get a vote of the full committee before you
try to do something controversial like that.
Ms. Johnson. Thank you very much.
Thank you, Mr. Chairman.
Chairman Smith. Thank you, Ms. Johnson.
The gentleman from Oklahoma, Mr. Lucas, is recognized.
Mr. Lucas. Thank you, Mr. Chairman.
I would ask unanimous consent to enter into the record an
article by Charles Grodin Gray for the Investors Daily or
Business Daily supporting the Committee's investigation into
the actions of the Attorneys General and the environment groups
and solidifying that Attorneys General, environmental groups
should comply with the Committee's subpoenas.
Chairman Smith. Without objection, we'll put that in the
record.
[The information appears in Appendix II]
Mr. Lucas. Thank you, Mr. Chairman, and Mr. Chairman, I
take very seriously my role as your Vice Chairman on this
Committee, and before I had the responsibilities and the honor
of being Vice Chairman of the Science Committee, I chaired
another committee in this House body, and on one occasion we
were compelled to use the subpoena process to bring a very
unhappy witness to testify before us. We had to send the
federal marshals physically out to find him and his attorneys
and to present the paperwork.
Now, that said, based on my experiences that sometimes
these things are important, first I would ask Mr. Turley, my
understanding is various committees routinely subpoena state
officials. Does the title of the state official make any
difference? Is a state official a state official?
Mr. Turley. I don't think so, and I disagree with my friend
Professor Tiefer. I've never received as a counsel or heard of
a friendly subpoena. All subpoenas tend to be rather unfriendly
because you could just give information to committees. You
don't have to be subpoenaed but sometimes subpoenas might be
wanted. But it doesn't mean that they're different in kind. The
question is, what is this Committee's authority to issue
subpoenas, and is there a threshold problem, and in my
testimony I say, you can look at the first question, is there a
problem with subpoenaing state agency. The answer to that is
clearly no, and you wouldn't want that because state agencies
can deny federal programs, deny federal rights. They did so for
long periods of time. The last thing this Committee wants to do
is acknowledge that type of threshold doesn't exist. So the
next question is, is there something about this state agency
being states' Attorneys General. The answer is no, not in terms
of any threshold, absolute privilege. Now, they may have
arguments to make to the Committee as to the scope but that's
the difference, and what I hear from my friend Charles object
to is really what should, not what is. Something that may be
unprecedented doesn't mean it's unconstitutional, and I think
we have to separate the wheat from the chaff in that sense and
say look, this Committee clearly can subpoena state agencies,
and there's no magic aspect of this particular state agency
that would stop the Committee from issuing a subpoena, and you
wouldn't want to. You could have state Attorneys General who
are eradicating the rights of abortion clinics or environmental
protection or voting rights. Would you want to say that you
can't subpoena those state agencies when they're interfering
with federal rights? I doubt that.
Mr. Lucas. Setting the political discussion aside, which
you handed that, and focusing strictly on the legal perspective
that you have, and I am not an attorney, so let's talk for a
minute. Could you expand on that Supreme Court case, Wilkinson,
that dealt with the three-prong test of what's legit? Could you
further discuss that?
Mr. Turley. Yes. I mean, Wilkinson, first of all, you
should know----
Mr. Lucas. And how long ago was the case decided?
Mr. Turley. Wilkinson was 1961, I believe, but in
Wilkinson, the court specifically identified three areas that
had to be satisfied, but I want to note that Wilkinson also
rejected this idea that the court would delve into motivations.
Now, anyone can certainly challenge the purpose or the
motivation of a committee going for a particular target but the
court said it's not going to get into that. It said, ``Such is
not our function.'' Their motives alone would not viciate an
investigation that's been instituted by the House if that
assembly's legislative purpose is served. And so what the court
looks at is the broad authorization of a committee, whether
this is pertinent to that scope of authority, and issues of
that kind, and then where it has problems is when a committee
goes outside of its scope and starts asking witnesses questions
that are not germane or pertinent. There have been a few cases
like that. But the vast majority of cases by the Supreme Court
give overwhelming support for the necessity, not just the
ability, the necessity of committees to have great leeway in
the enforcement of subpoenas.
Mr. Lucas. Thank you, Professor.
In the last few moments left, Professor Foley, expand a
little more on the federalism principle issues in what time I
have left if you would, please.
Ms. Foley. Yeah, absolutely. I mean, you know, when I teach
constitutional law, the first thing I tell my students is, read
the text of the Tenth Amendment. The Tenth Amendment says that
the powers not delegated by this Constitution to the United
States belong to the states respectively or to the people. So
that text says that if we haven't given the power to the
federal government, it belongs to the states respectively or to
the people. So the $6 million question is, have we given the
power to the federal government? And that's basically what the
Supreme Court said in Garcia. It said the only legal question
in states' rights, which is actually a misnomer because it's
about individual liberty, not really states, but the only real
question in states' rights is have we given the power to the
federal government. If we have, the federal government can
exercise that power. It has a preemptive scope under the
supremacy clause. It's game over except for two federalism
doctrines that the Supreme Court has carved out post Garcia,
and those two doctrines are only the anti-coercion doctrine,
which deals with spending power, which is not at issue here,
that was part of the Affordable Care Act case, NIFB versus
Sebelius, and then this anti-commandeering doctrine, which is
the doctrine that's being invoked.
Mr. Lucas. Thank you, Professor.
Thank you, Chairman.
Chairman Smith. Thank you, Mr. Lucas.
I also want to point out just in this Congress, there are
three committees who have directed subpoenas to state
officials. It's not unusual.
The gentlewoman from California, Ms. Lofgren, is
recognized.
Ms. Lofgren. Thank you, Mr. Chairman.
This has been an interesting exercise here to look at these
things, and Professor Tiefer, I especially appreciate the
experience that you had. A lot of people in the country don't
even know there is a General Counsel's Office in the House of
Representatives and that they are appointed and serve on a
nonpartisan basis and provide legal advice to the House that is
completely like the parliamentarians. I mean, they're just
aside from the whoever's in the majority. And I have had
occasion to rely on the General Counsel's advice many times in
my years here in the Congress.
One of the things--we're talking about the validity,
really, of these subpoenas, but one of the things that I
thought was really odd, honestly, is that the Science Committee
would be issuing these subpoenas. It seems to me that the--you
know, there are committees that investigate various things. I
serve along with the Chairman on the Judiciary Committee. But
in your experience, how would you find jurisdiction here in the
Science Committee?
Mr. Tiefer. I thank you for your kind words about the House
Counsel's Office, Congresswoman.
There's several reasons that I would not find jurisdiction
here. Number one, the Committee has jurisdiction over federal--
oversight jurisdiction over federal bodies like NASA and the
National Science Foundation, and the fact these are spelled out
in the rules negates by implication that it can reach to
everybody anywhere about anything in the United States. And
secondly, yes, you're on the Judiciary Committee. You look into
infringements in constitutional rights. The Science Committee
doesn't have that.
Ms. Lofgren. I want to talk also about really the
fundamental issue, which is that the U.S. Congress has never
done something like this in over 200 years of history, and I
think when you do something that is completely unprecedented, I
think that it bears examination.
One of the things that I was struck with is that the AGs
are investigating potentially criminal conduct, and that a
committee that probably lacks jurisdiction could attempt to
interfere with that criminal prosecution, to me seems, you
know, extraordinary. Is that the basis for, you know, the
Congress not intervening? Do we--I guess we can't know for sure
why every other Congress in the history of the United States
never did something like this, but it seems to me an
extraordinary misuse of authority to try and intervene in a
criminal prosecution.
I was interested in Professor Foley's discussion about
inherent contempt because we had some discussion of this in the
Judiciary Committee when the President's Counsel refused to
respond to subpoenas relative to dismissal of U.S. Attorneys,
and it turns out there used to be an actual jail in the
basement of the Capitol. But as we got into discussion how does
the Congress enforce its subpoenas, we envisioned this thing
where, you know, the sergeant at arms would go and face off
with the Secret Service. You know, in this case, our Attorney
General in California has initiated investigation. You know,
would we send the sergeant at arms to face off at the
California Highway Patrol? Would there be an armed conflict? I
think that's the reason why we have not used that basis. Our
system of government, the three branches, just like we all
learned in school, is meant to work in a peaceful way to
resolve disputes, and that's why we go to the judiciary to
pursue enforcement. Is that your take on this, Professor?
Mr. Tiefer. I have to say, Congresswoman, that what used to
be the Capitol jail was the cafeteria now in the basement.
Ms. Lofgren. Well, it's no longer available. We know that.
Mr. Tiefer. Some say the kitchen stayed the same.
Yeah, there was a time that the Congress used to lock up
people but that's from a bygone era. We would have to turn
ourselves into a courtroom here, which could never be done. You
really would end up having the U.S. attorney criminally
prosecute and try to put in jail the states Attorneys General?
It boggles the mind to think that we could enforce a subpoena.
Ms. Lofgren. Well, I just think these subpoenas are a huge
mistake. They're not based in precedent or law. They will
intimidate scientists, and they are a departure from our
structure of government, a huge mistake, and I thank the
Chairman for allowing me to have----
Chairman Smith. Thank you, Ms. Lofgren.
And the gentleman from Texas, Mr. Neugebauer, is recognized
for his questions.
Mr. Neugebauer. Thank you, Mr. Chairman.
Mr. Chairman, I'd like to enter for the record two recent
media reports related to New York Attorney General Eric
Schneiderman. The first from the New York Post reports on an
attempt by the Attorney General to reach out to hedge fund
mogul and environmental activist Tom Stiler seeking support for
his run for governor in 2018. And the second report highlights
a large number of campaign contributions the Attorney General
has received from wealthy liberals like George Soros and
environmental activists and philanthropists like the
Rockefeller family and lawyers who stand to profit from the
legal judgment against that, so----
Chairman Smith. Without objection. Thank you.
[The information appears in Appendix II]
Mr. Neugebauer. Professor Foley, you were starting to talk
a little bit about the First Amendment protections that have
been raised. Would you like to finish your thoughts on that?
Ms. Foley. Yes. Thank you for that opportunity. I really
want to emphasize a couple of things. First of all, all the
cases that are being relied upon by the state AGs and these
private organizations involve the use of a subpoena to obtain
membership lists or name of members of organizations. That was
the case in the Wilkinson case, the Baron Black case, numerous
other Supreme Court cases involving the House Un-American
Activities Committee. It also was the case in NAACP versus
Alabama. It was the case in the Gibson versus Florida
Investigative Legislative Committee, which was cited. And
that's a fundamentally different question because what the
court says in the membership list cases is that when you turn
over a list of the names of people who belong to certain
organizations, that clearly implicates First Amendment
associational rights because it can chill those associations.
It should be noted for the record that this Committee's
subpoenas are not seeking membership lists. It is seeking
ordinary documents and communications shared amongst these
groups and with the Attorneys General. That kind of information
is routinely turned over in civil litigation. There's a Federal
Rule of Civil Procedure 34, request for production of
documents, that makes these kinds of documents routinely
available. When it's issued against non-parties, Federal Rule
45 allows a subpoena duces tecum to obtain these kinds of
documents and communications, and they have never been thought
to implicate any First Amendment rights. If it did, if turning
over simple communications amongst parties implicated First
Amendment rights, Federal Rule 34 and 45 would be
unconstitutional, and that's simply not the case.
Also, let me just point out in those membership list cases,
those only succeed when the organization whose membership is
sought to be turned over can make a prima facie evidentiary
showing that turning over the names of the members will result
in intimidation or harassment of the members. That certainly is
not in play here, and even when it is potentially, the courts
don't buy those arguments. Just in 2015, the most liberal
federal Court of Appeals, the U.S. Court of Appeals for the
Ninth Circuit, held in a case involving the Center for
Competitive Politics that that organization had to turn over
its membership lists despite its First Amendment objections.
Mr. Neugebauer. Amplifying on that, in your view, does
Backpage court differentiate between the First Amendment
protections in the realm of Congressional investigation when
such investigation may implicate a criminal activity as opposed
to an investigation where the subject matter is decidedly not
criminal in nature?
Ms. Foley. Is that directed to me, sir?
Mr. Neugebauer. Uh-huh.
Ms. Foley. Yes. That's a good point. In fact, I really want
to emphasize the cases that have involved First Amendment
objections have all been in the context of criminal
proceedings. It hasn't arisen in the civil proceedings. In
those limited proceedings the only objection has been executive
privilege. And it's never--the First Amendment has never come
into play in any of the inherent contempt authority cases of
the Supreme Court.
When it is a criminal case, it is a different show, right,
because there are heightened considerations about special
constitutional rights that attach to a criminal defendant, so
courts are particularly sensitive in criminal cases in a way
that they're not in the civil or the inherent authority
context.
Mr. Neugebauer. Professor Rotunda, in your opinion, what is
the best method for carrying out scientific inquiry on an
important question such as climate change?
Mr. Rotunda. Doing it without fear of prosecution, without
fear of threats of prosecution, without having to turn over
tons of documents going back many, many years because that
takes a lot of effort to do. You would just like to be able to
go in your lab, do experiments, publish the results, and then
people can decide whether you're right or you're wrong based on
whether they can replicate your experiments or they think your
math is wrong or something like that.
You know, years ago, Father Lemaitre, a Belgian priest, a
Belgian priest who was teaching at the Catholic University of
Leuven, where I used to teach briefly, he presented his
argument why the universe had a beginning. This was the
beginning of the 20th century, and Einstein wrote him--they
were friends--he said your math is correct but your physics is
atrocious. And the reason you can attack Father Lemaitre by
looking at what his math is like, trying to replicate his
experiments.
Nowadays I guess, you know, we're the more intolerant 21st
century, we'd prosecute him. You took money from the Vatican?
Who paid for your education? You teach at a Catholic
university? Eventually Einstein said that Lemaitre was right
and Einstein was wrong, and at the time, by the way, Lemaitre
said that, every scientist or purported scientist going back to
Aristotle thought the universe was always here. Now we know it
has a beginning. And what we'd like to do is have these
scientists argue freely about whether or not the globe is
warming, why the climate change models are off, and it's never
as bad as they think it's going to be. That's what we should
do.
Chairman Smith. The gentleman's time is expired. Thank you,
Mr. Neugebauer.
The gentlewoman from Oregon, Ms. Bonamici, is recognized.
Ms. Bonamici. Thank you, Mr. Chairman.
Last month I was home in Oregon and I did a series of town
hall meetings around northwest Oregon, and my constituents,
both Democrats and Republicans, care a lot about climate
change. They know I'm on the Science Committee and they always
want to know what we are doing. I assure you this is--what
we're doing today is not what they expect and certainly not
what they deserve.
So my constituents of course are justifiably concerned
about the subpoenas that certain members of this Committee have
sent to the Attorneys General of New York and Massachusetts, to
the Union of Concerned Scientists, to the Rockefeller
Foundation. I'm having trouble with the valid basis for the
Committee to send those subpoenas, and I understand we have a
scholarly disagreement here.
But what's even more baffling is why is the Committee
making this a priority when there's so many issues that deserve
our attention and our action like ocean acidification, melting
glaciers, ways to find and curb greenhouse gas emissions, and
in this Committee we should be learning facts that may be
helpful in creating positive legislation. And so I know the
Majority is claiming that the Attorneys General and the
subpoenaed groups are allegedly involved in some kind of
attempt to infringe the free speech rights of ExxonMobil but in
fact the Attorneys General are doing their jobs by
investigating whether ExxonMobil withheld important information
from its shareholders about the connection between fossil fuels
and climate change, and that is certainly within the
appropriate scope of responsibility of Attorneys General. If
ExxonMobil has a problem with the AGs' subpoenas, the company
can certainly challenge them in the court of jurisdiction,
which I understand they have done. But that challenge would be
in the judicial branch. This is the U.S. House Committee on
Science, Space and Technology. We're not prosecutors. We're not
here to adjudicate whether a petroleum company's free speech
rights are being violated, although I will add, and it's been
mentioned already, that it's pretty clear that there's no free
speech right to commit fraud.
In fact, I'm more concerned about the chilling effect that
the Committee subpoenas might have on the free speech rights of
those, not only the subpoena recipients but on other
organizations that are doing that important work of researching
and addressing the threat of climate change.
So Professor Tiefer, where's the most serious First
Amendment threat here? Is it the issuing of subpoenas by the
Science Committee or the investigation by the Attorneys
General, and why?
Mr. Tiefer. Congresswoman, ExxonMobil can take care of
itself. I would like to be their lawyers. I would like to get
what they can pay their lawyers instead of--I mean, it's not
being bad being a professor. I'm not complaining.
Anyway, the First Amendment rights of organizations are
very important. The ones historically were both left-leaning.
They were gone after in the red-baiting period, and the Supreme
Court recognized the First Amendment rights of--and civil
rights organizations that got legislative subpoenas in our era.
The freedoms involved are not merely membership lists, although
those are the most prominent example, but all parts of the
freedom of association belong to these groups.
Ms. Bonamici. Thank you. And we know here what the state
Attorneys General are asserting, that--and they have supporting
evidence. We're not here to adjudicate that but they're
asserting that ExxonMobil has known for years that climate
change is real, that burning fossil fuels contributes to
climate change, and scientists as far back as the Carter
Administration spoke with trade associations about how climate
change is anthropogenic, and they're also asserting that
despite this internal knowledge, Exxon until recently publicly
stated the opposite working to challenge the emerging
scientific consensus on climate change, assuring investors that
climate change would not affect their bottom line, and not
publicly disclosing its internal stockpile of evidence to the
contrary.
So given all those assertions, and again we're not here to
adjudicate that. That's up to the court. But given those
assertions and given that the New York Attorney general has
fairly broad investigative powers and the Financial Crimes
Bureau to prosecute securities and investigation fraud, if
Exxon scientists are saying one thing behind closed doors and
the company is telling its shareholders something else, is it
not appropriate for the Attorney General to investigate that?
Mr. Tiefer. Absolutely. I see what's going on here. It's
very similar to what happened in tobacco industry
investigations where the tobacco industry had files and records
that nicotine was addictive but was making public statements
including statements to its stockholders but also potential
lung cancer victims. So--and the state Attorneys General went
after that. That was the only level, the only place that you
had a willingness to investigate that. So once again, we need
to get out what's in those files and the state AGs are the ones
who are going to do it.
Ms. Bonamici. Thank you very much. I see my time has
expired. I yield back. Thank you, Mr. Chairman.
Chairman Smith. Thank you, Ms. Bonamici.
And the gentleman from Alabama, Mr. Brooks, is recognized.
Mr. Brooks. Thank you, Mr. Chairman.
I ask unanimous consent to enter into the record an article
written by witness Ronald Rotunda for Justia.com regarding the
motives of the Attorneys General and environmental groups to
chill scientific inquiry into climate research.
Chairman Smith. Without objection, in the record. Thank
you.
[The information appears in Appendix II]
Mr. Brooks. Thank you, Mr. Chairman.
Before I get to my questions, let me emphasize something
about this, "climate change phrase". I know of no person on
Earth who denies that climate change occurs. Anyone who knows
anything about Earth's history knows the Earth's climate has
always changed to hotter, to colder, to wetter, to dryer, and
the like. And the Earth's climate always will change. Rather,
the so-called climate change debate is about the role humanity
has played, if any, in today's version of climate change to the
cost to humanity in terms of depressed economies and lost lives
of implementing so-called climate change cures, whether that
cost to humanity of so-called climate change cures does more
damage than good, i.e., whether the purported cure is worse
than the alleged disease, whether so-called cure is a cure at
all, and the like.
That having been said, this seems to be a hearing more on
legal issues as opposed to those types of issues related to
climate research, and with that as a backdrop, I'm going to
focus on the Wilkinson versus United States case, and I'm going
to ask each of you to share your views. In order to determine
if the Committee's investigation is legally sufficient, the
Supreme Court in Wilkinson versus United States established a
three-prong test. The court must determine, one, the
committee's investigation of broad subject matter must be
authorized by Congress; two, the committee must have a valid
legislative purpose; three, the demand in this case, the
subpoena, must be pertinent to the subject matter authorized by
Congress. With respect to the second one, valid legislative
purpose, I just note some quotes by Professor Turley in his
written testimony: ``As an academic, I find the demands of
these state investigations to be chilling in their implications
for experts and academics alike.'' ``As an academic, I view the
effort of the state Attorneys General to be highly intrusive
into academic freedom and free speech.'' I hope that we all can
agree here that freedom of speech, freedom of researchers to do
valid scientific research is a right that is protected in the
United States Constitution is certainly something that this
Committee has the right to make inquiry concerning.
That having been said, my question is this: In your
opinion, does the Committee's investigation of the Attorneys
General and environmental groups satisfy the three-prong test
of the Wilkinson case? Professor Turley, as I understand it,
your testimony is yes. Is that correct?
Mr. Turley. Yes, and I would add that I disagree with
Professor Tiefer in that when I look at Rule 10, I don't see
how you could possibly argue that this falls outside the scope
of Rule 10. Rule 10 talks about--it's certainly about federal
concerns but no committee is limited to the narrow definition
that he's presenting, in my view, about federal research or
federal issues of that kind. This Committee is allowed to
investigate things that impact upon those areas that it is
given, and second, all committees deal routinely with free
speech issues, with potentially criminal issues. If that wasn't
the case, we would just have a huge Judiciary Committee and
dozens of subcommittees because this is a routine type of
conflict that comes up.
Mr. Brooks. Professor Rotunda?
Mr. Rotunda. Oh, I agree with everything he said. I think
the--the purpose of this Committee and the purpose of the
Committee's subpoenas is not to stop the Attorneys General of
the states from subpoenaing. They want to investigate fraud. We
want to know whether there was a corrupt agreement. Well, there
is a corrupt agreement between the state Attorneys General,
some environmental groups, and George Soros, and you have to
know that to decide if you're going to propose legislation to
take that into account. There may be more money because it's
taken into account that people are chilled when leaving the
subject. Maybe you want to fund advocacy research. The
government for decades studied advocacy research on why
marijuana is bad when other people said it wasn't bad. Maybe
they were high when they said that. But the fact is that the--I
was on the Senate Watergate Committee. We came up with
legislation at the end. We didn't know at the beginning what it
would like because we didn't know the depth of the problem, and
I think you ought to find out what is the depth of the problem
here. Is it really true that the Attorneys General are part of
a corrupt agreement, or is that all made up, in which case you
might decide to propose nothing, but you cannot make that step
unless you first investigate.
Mr. Brooks. Mr. Chairman, I see my time has expired. If you
wish for Professor Foley and Professor Tiefer to respond, of
course, that's at your discretion, but if not, I understand.
Chairman Smith. Okay. I'm afraid the gentleman's time is
expired but the gentleman is welcome to put questions in the
record and direct those to the witnesses as well.
The gentleman from Virginia, Mr. Beyer, is recognized for
questions.
Mr. Beyer. Thank you, Mr. Chairman.
Before I begin, I'd like to enter into the record an
editorial board piece from the Washington Post which calls the
Science Committee's subpoena of NOAA ``a fishing expedition.''
I'd also like to submit a letter that Congresswoman Edwards
and other members of the Virginia, Maryland and Washington,
D.C., delegations and I sent to Chairman Smith back in June in
response to his request for documents from the state Attorneys
General, and lastly, a letter from three constitutional
scholars at Duke, Chapel Hill and the University of Virginia,
especially Brandon Garrett, questioning the--denying the
Committee's authority to issue subpoenas to state----
Chairman Smith. Without objection, they'll be put in the
record.
[The information appears in Appendix II]
Mr. Beyer. Thank you, Mr. Chairman.
Professor Tiefer, you were Acting General Counsel for the
House of Representatives for 11 years so you have extensive
knowledge of the oversight authority of the House and even
specific committees of the House. In terms of investigative
authority, how would you would describe the oversight authority
of the Committee on Oversight and Government Reform compared to
this Committee, the Science Committee? And please be brief
because----
Mr. Tiefer. Much worse, much broader. They have total
oversight where this just has a slice of it.
Mr. Beyer. So in your understanding, OGR has a greater
scope of investigative jurisdiction?
Mr. Tiefer. Definitely.
Mr. Beyer. That is interesting because Congressman Jason
Chaffetz, who chairs the OGR, told Wolf Blitzer on CNN last
week that he didn't believe this Committee had the authority to
investigate Florida Attorney General Pam Biondi in accusations
of pay-to-play. If I could ask for a quick few seconds of this,
please?
[Playback of video]
Mr. Beyer. Professor Tiefer, how do you square
Representative Chaffetz' understanding of OGR Committee's
investigative jurisdiction with the Science Committee
Majority's understanding of its investigative jurisdiction?
Mr. Tiefer. They don't have it; you don't have it.
Mr. Beyer. All right. Professor Turley, you said clearly
that Article I gives this Committee the power to issue
subpoenas. Professor Tiefer's response was that fraud
investigation is a legitimate bread-and-butter state AG
investigations, and the Supreme Court holds that the First
Amendment does not protect such fraud. How do you reconcile his
interpretation that it doesn't protect the fraud investigation?
And let me give you one--because you used the word ``chilling''
a bunch of times. How does it chill scientific research when
the attorney general's fraud investigation is taken existing
scientific research from ExxonMobil, a public record that says
it was real, with their statements, some would say lies, to
their investors about what the research shows? Is that chilling
scientific research or is that simply saying you can't do one
thing and say something different to your investors?
Mr. Turley. I think it is chilling scientific research
beyond this even though I happen to agree with the other side
in this, with the Obama Administration, with the people who are
supporting these state investigations. I think this is a step
too far. I think that this was a uniquely bad idea. I think
it's delving into areas of a difference of opinion. I happen to
think the record's clear but there are very good people who
disagree with me, and as academics, were used to having peer
review, not a jury of our peers, decide those questions.
Now, in terms of the fraud issue, I'm afraid I have to
disagree with Professor Tiefer. It's easy to call anything
fraud. During the Red Scare, they called communists inherent
subversives. You can--anyone can say that your views amount to
fraud. I find it very difficult to accept the premise of these
state investigations on an issue of scientific disagreement as
an academic but simply saying that this might be fraud or it
might be a problem under shareholder laws, it maybe doesn't
change the dynamic here. From the perspective of the other side
of this, they believe that what's happening here is that it is
analogous to the Red Scare, that climate change, you know,
skeptics are being treated like the new communists.
Now, on your side, you believe that that's a closer analogy
to the environmental groups. You know, frankly, I'm not
interested in the school yard fight issue of who started this,
but I do think that the arguments you're making today would
seriously undermine the arguments made in these states as well.
I think both actually have authority to do what they're doing,
and it would be better for them to reach a compromise on scope
and stop fighting on threshold questions.
Mr. Beyer. Mr. Chair, I yield back.
Chairman Smith. Thank you, Mr. Beyer. I trust you're
persuaded by Professor Turley's last remarks.
The gentleman from Ohio, Mr. Davidson, is recognized for
his questions.
Mr. Davidson. Thank you, Mr. Chairman. Thank you all for
being here today.
And without objection, I'd like to enter into the record a
statement from the Washington Post, Dennis Vacco. Mr. Chairman,
the article from Mr. Vacco says his concern was that he served
as Attorney General for the State of New York from 1995 to
1999, and during that time he investigated and sued the tobacco
companies for fraud. Mr. Vacco differentiates the tobacco cases
from the Exxon investigation and suggests that the Attorneys
General investigations into science, climate science, is for
political purposes. It's a very clear distinction from the
references to the tobacco settlement.
Chairman Smith. Okay. Without objection, that'll be made a
part of the record.
[The information appears in Appendix II]
Mr. Davidson. And just to clarify, you know, the concern
here is that this is really not just a chilling effect but
perhaps even a chance to criminalize scientific inquiry, to
basically say dissent that others might have is going to
subject you to criminal inquiry.
The broader concern, to address Ms. Bonamici's, you know,
comments, we are focused on the actions of the Attorneys
General and the effects of those actions on research and
development in the United States, of which a significant
portion is funded by Congress. The Attorneys General subpoenas
demand documents and research of public and private scientists.
We spent a lot of time talking about ExxonMobil but this is
also targeted at individual scientists, groups, nonprofits and,
you know, could spill over into universities as well. So this
is really an effort to shape research, not just object to
fraud.
And so, Professor Turley, you know, could you comment on,
is there an inherent conflict with the Attorney Generals'
ability to respond to our subpoena and their ability to pursue
a case for fraud?
Mr. Turley. There isn't a conflict in that sense. You know,
the New York Attorney General said that this Committee is
trying to effectively do a hostile takeover of his office.
That's obviously hyperbole. It's not true. The Committee has
asked for information. It's not like the commandeering cases,
the relatively few such cases where the court has viewed it in
that way. He can proceed in the same way he's doing now. But I
would also note that my understanding is that at least one
group has acquired many of this--much of this information
through the Vermont Public Records Law, and back in June I
testified in the Judiciary Committee and noted that groups like
Judicial Watch were actually acquiring evidenced through FOIA
that the Committee had not been given by the Administration,
and this creates an absolutely bizarre situation where
committees with oversight actually have less authority, less
ability to get information than citizen groups or individual
citizens, and the fact that you can acquire some of this
information through the Vermont Public Records Law should be
very, very troubling to anyone on this Committee.
What we have to look at is, is there a constitutional
threshold barrier to asking the states Attorneys General
information specifically geared towards this investigation in
light of what this Committee views as the inherent impact upon
academics. The answer is no. Does the--can the attorney general
make objections that some information should not be turned
over? Certainly, and most of the times I've seen this happen,
committees have tried to accommodate, and I'm pretty sure this
Committee would do the same.
Mr. Davidson. Thank you for that.
I'd like to address Professor Foley. You talked about the
concerns really not just in this case but broadly, and it's
been a trend of subpoenas and inaccurate statements being given
to Congressional committees, so kind of the proliferation of
these events. What is the net effect on the power of Congress
to receive honest and accurate testimony, and receive the
information rightfully requested under subpoena? We've seen
numerous instances where the evidence request has been
destroyed. So could you comment on that, please?
Ms. Foley. Yeah. I mean, I think you see the effect almost
daily, it seems, where Congressional subpoenas are being
routinely ignored and disrespected. The problem is that for
some reason, this branch of government, which the framers
thought was going to be the most powerful, the most vigorous of
the three branches, has turned out to be relatively infuscate
over time, and I think that's because--I heard it a little bit
earlier today from someone in this Committee who suggested they
couldn't even envision really Congress using its inherent
authority to go out and send the sergeant at arms to arrest
someone. Well, guess what? That power was routinely exercised
by early Congresses. Early Congresses were not afraid to assert
their constitutional prerogatives, and I don't think you should
be either.
Mr. Davidson. Thank you. My time is expired.
Chairman Smith. Thank you, Mr. Davidson.
And the gentleman from New York, Mr. Tonko, is recognized
for his questions.
Mr. Tonko. Thank you, Mr. Chair.
I find it extremely concerning that these subpoenas may
interfere with legitimate investigations of fraud. Many of our
colleagues share this concern, which is why 18 members of the
New York delegation recently expressed our disappointment in
the Majority's decision to issue unilateral and unprecedented
subpoenas, and I have a copy of this letter, Mr. Chair, that
has been forwarded to you before the hearing, I believe
yesterday. And let me just state that that's not our opinion as
a group; it's based on research done by CRS.
I'm also concerned that these subpoenas not only set a bad
precedent but also damage the credibility of both this esteemed
committee and Congress as a whole. The state Attorneys General
investigation of possible fraud under state laws, and let me
repeat that, state laws, by ExxonMobil bear a striking
resemblance to earlier state AG fraud investigations of Big
Tobacco in the 1990s. Those investigations led to settlement
agreements between all 50 states and the tobacco industry for
hundreds of billions of dollars. The Department of Justice then
sued and Big Tobacco was found liable for fraud under the
federal RICO Act. This is despite the fact that Big Tobacco
made similar arguments to what we are hearing from our Majority
today.
So perhaps it is understandable why Exxon and their
Congressional allies are going to such lengths to interfere
with legitimate fraud investigations. I would like to add that
this is not the first time the Science Committee has abused its
oversight authority to defend oil-and-gas interests, and it is
not the first time those actions have been condemned. Last
year, the New York Times editorial board condemned the
Majority's subpoena to NOAA climate scientists, which seemed to
be based on political beliefs and not substantive evidence of
wrongdoing of any sort.
I would like to ask for unanimous consent to enter that
editorial, Mr. Chair, into the record.
Chairman Smith. Without objection, it'll be in the record.
[The information appears in Appendix II]
Mr. Tonko. Thank you.
Today, these state AGs including the Attorney General from
my home State of New York are investigating potential fraud.
They are not infringing on the First Amendment rights of
ExxonMobil or industry scientists. As became clear in tobacco
litigation, fraudulent speech is not protected by the First
Amendment.
Professor Tiefer, you have already addressed this tobacco
litigation but can you further expand upon the similarities
between those cases and the current investigations into
potential fraud by Exxon?
Mr. Tiefer. They're very similar. The state Attorneys
General often working through the National Association of
Attorneys General, NAAG, have evolved a process by which states
group together, often with a leader, in this case, New York
State, as you say, and to investigate fraud by companies. It's
a major activity of theirs and a legitimate activity.
Mr. Tonko. Well, I thank you for that, and I also have
serious concerns about subpoenas, the subpoenas issued by the
Majority to some nine environmental advocacy organizations, and
how these groups have been treated in the process.
Ken Kimmel, the President of the Union of Concerned
Scientists, wrote an op-ed called ``When Subpoenas Threaten
Climate Science.'' I agree with the sentiment that these types
of scare tactics threaten the vital work of many organizations.
I would like to ask for unanimous consent to also enter this
op-ed into the record, Mr. Chair.
Chairman Smith. Without objection.
[The information appears in Appendix II]
Mr. Tonko. And much of the legal community, the scientific
community, and Congressional experts like Professional Tiefer
and CRS all agree that these subpoenas are unprecedented. There
is an obvious political agenda here, I believe, and I hope that
we will put an end to infringing on states' rights so that our
AGs can conduct their rightful enforcement of the law. I
believe that's an important part of this process, and based on
some of the progress that we made on behalf of consumers as it
relates to tobacco industry resulted in outstanding benefits,
public health benefits for this country, and I think that we
should take heed of what's happened in the past year and
understand that we're well served by allowing for our states
via the AGs to do their work and to do it abundantly well, and
with that, I yield back, Mr. Chair.
Chairman Smith. Thank you, Mr. Tonko. I might encourage the
gentleman to get the most recent submission by CRS. They
updated their memo and made some corrections to it.
The gentleman from Georgia, Mr. Loudermilk, is recognized
for his questions.
Mr. Loudermilk. Thank you, Mr. Chairman, and I thank the
witnesses for being here.
Mr. Chairman, I ask unanimous consent to enter into the
record an article in the Wall Street Journal by Hallman Jenkins
entitled ``How the Exxon Case Unraveled,'' which illustrates
the fluidity of the argument by the New York Attorney General
in his justification for this case, which continually is
changing, and to me is evidence that this effort is to
express--or suppress a dissenting view, which being able to
challenge status quo is the history of America. If we haven't
had the freedom to challenge what was generally accepted ideas
and models, even scientific models, we would still believe the
world was flat, which was the accepted government idea at the
time. If Orville and Wilbur had not had the freedom to
challenge generally accepted aerodynamic theorems that they
developed new ones, we wouldn't have an Air and Space Museum
today.
[The information appears in Appendix II]
Mr. Loudermilk. The generally accepted idea of scientists
was that we could not leave the orbit of the Earth and travel
to the moon or the four-minute mile could not be accomplished.
I agree this is chilling, and what the chilling effect of
this is, the government using the power and the strength of law
to suppress a dissenting view regardless of whether you agree
with it or not.
Professor Foley, thank you so much for recognizing that the
Tenth Amendment is a succession of powers, not rights, that
individuals hold rights, not government. Government holds
power. Thank you. You don't hear that very often. I'd like to
ask you a couple of questions. I like what you said, and you
articulating that there are three separate and coequal branches
of government. However, it appears throughout history,
especially in the Civil Rights movement, that the executive
branch has quite often interjected itself in states' issues,
for instance, when LBJ sent federal troops to protect the
voting rights march in March of 1965. Is that within the
constitutional realm, in your opinion, that the executive
branch has instituted itself to protect rights, especially a
First Amendment right?
Ms. Foley. Of course.
Mr. Loudermilk. Okay. It concerns me that Professor Tiefer,
though, is taking the approach, if we take his approach, then
with that idea the executive branch then has more power than
the legislative branch. Am I correct in that?
Ms. Foley. I assume that is the implication.
Mr. Loudermilk. Okay. According to the Constitution,
Article I, section 4, who's responsible for elections, states
or the federal government?
Ms. Foley. States.
Mr. Loudermilk. States are given the constitutional
authority for elections, correct?
Ms. Foley. Correct.
Mr. Loudermilk. However, federal troops were sent by the
executive branch to protect the voting rights of individuals
during--throughout our history, especially during the civil
rights movement. Am I correct on that?
Ms. Foley. And thank goodness.
Mr. Loudermilk. Was that proper constitutional authority?
Ms. Foley. Of course.
Mr. Loudermilk. Could you opine then, how is it that we
have coequal branches of government but one branch has an
executive authority to intervene when rights are being violated
but not the Congressional branch----
Ms. Foley. Well----
Mr. Loudermilk. --or the legislative branch?
Ms. Foley. And let me just echo this by saying you may have
gotten to this but section 5 of the Fourteenth Amendment, the
enabling clause gives Congress the power to enforce the Bill of
Rights, which have been incorporated into the states via the
due process clause of the Fourteenth Amendment. So one of
Congress's most important responsibilities is to protect the
Bill of Rights and prevent state officials from violating those
rights.
Mr. Loudermilk. And I would say this for the record, that I
would take the same stance if the tides were turned and it was
the government trying to suppress the views that there is
climate change when the government was assessing that there is
not.
Professor Turley, can I ask you real quick to opine on the
video of Chairman Chaffetz, that it was brought up that we're
taking two sides of an issue here? What is your opinion on his
authority to investigate?
Mr. Turley. Well, it's always fun to testify with Wolf, but
I think that it's hard to compare the two investigations. I'm
not particularly familiar with that one. Obviously I'm familiar
with this one. I don't see how any of the arguments being made
with regard to this Committee's authority, particularly with
AGs, can be challenged just because it's a criminal--
potentially a criminal matter. First of all, the New York AG is
doing a shareholder investigation, which by its nature is more
civil than criminal, but it could involve criminal charges, but
if you look at cases like Sinclair versus United States, the
Supreme Court rejected these type of collateral consequences.
That wasn't with an AG. But you had someone who objected to the
fact there was a criminal case going on. There was a core
criminal matter, and the court rejected it and said that
doesn't take away the fact that the Committee has a legitimate
interest in all this.
Now, we can debate whether in fact the state investigations
are threatening academics. I have to view it that way. As an
academic, it makes me feel extremely uncomfortable to have
these investigations and their impact on people with dissenting
scientific views. But that's a matter of policy, that's a
matter of choice. I don't see much argument about the
unconstitutionality. Whether something's unprecedented doesn't
move the ball in the analysis. The question is, it is
unconstitutional, and I don't see that basis.
Mr. Loudermilk. Okay. So in summary, you can say----
Chairman Smith. The gentleman's time----
Mr. Loudermilk. --it doesn't meet the three-prong test and
Chaffetz----
Chairman Smith. The gentleman's time has expired.
Mr. Loudermilk. I apologize, Mr. Chairman.
Chairman Smith. Good question. We'll follow up on it.
The gentlewoman from Maryland, Ms. Edwards, is recognized
for her questions.
Ms. Edwards. Thank you very much, Mr. Chairman, and thank
you to the witnesses today. You're reminding me that I probably
shouldn't have slept through that week of law school.
But I wanted to focus today on, you know, a couple of
things that I've heard. One, the earlier analogy, which I think
is actually appropriate with respect to the lawsuits that
ensued against Big Tobacco, and I would note that the chief
prosecutor, the federal prosecutor's actually in the audience
today from the case, Sharon Eubanks, so thanks for joining us.
You know, over these last several weeks, and of course, the
Maryland Attorney General was subpoenaed as well, a letter went
out, and it's been widely denounced in a lot of quarters, and
particularly by the Baltimore Sun, which is not a liberal
bastion newspaper. In their editorial board, they noted that
the Committee had previously held ``witch hunt hearings'' and
they also explained a simple fact that the Majority apparently
seems to have some trouble grasping and that is what Attorneys
General, the Baltimore Sun editorial says, are looking into is
whether energy companies like ExxonMobil have crossed the line
into criminal behavior in their attempts to knowingly sabotage
scientific evidence of manmade climate change. At issue, for
instance, the Sun continues, is whether the companies may have
deliberately deceived investors and consumers about the
consequences of burning their products and thus deserve to be
held accountable. And I'd like to ask that the Baltimore Sun
editorial be entered into the record. It's from June 1st, Mr.
Chairman.
Chairman Smith. Without objection.
[The information appears in Appendix II]
Ms. Edwards. Thank you.
I also note that Professor Tiefer, in your testimony, you
note also that the subpoenas are without merit, and I really
appreciate both the experience that you bring in terms of your
scholarly work but also as a practitioner here in the House,
and I'm concerned about the Majority's actions on the
institution and what will happen with the institution. I would
note, for example, that in looking at the breadth of the
subpoenas, in the letter at least my Attorney General, Brian
Frosh in Maryland, the request was as follows: ``Your office
funded with taxpayers dollars is using legal actions and
investigative tactics in close coordination with certain
special interest groups and trial attorneys that may rise to
the level of an abuse of prosecutorial discretion. Further,
such actions call into question the integrity of your office,''
and I'm just really curious why the Congress of the United
States and this Committee has any jurisdiction whatsoever over
Maryland taxpayer, my taxpayer dollars being used in Maryland
for the purposes of our Attorney General's investigation. It
does seem to me that that is completely outside of the scope of
this Committee even if you extend it in its most broad form.
And I think that if the Committee continues this kind of
partisan attack, that it's going to be very problematic for our
institution.
I would note, for example, that, you know, in our work
there was no first negotiation, Professor Foley. The first
negotiation that should have taken place should have taken
place in this Committee with Republicans and Democrats looking
at what was being requested and then even reaching out to
organizations and institutions to figure out what it is that we
could get, that should have been the first negotiation, and
instead a letter singularly went out from the Majority to our
Attorneys General and all of these organizations without any
consultation with the Majority, and frankly, without a
Majority, without all of the signatures of the Minority. And so
clearly, there's a problem for the institution, and I'll give
you, Professor Tiefer, the remaining comments because your
advice to Congress in these matters also takes into account
what will happen in the future in this institution.
Mr. Tiefer. I thank the gentlelady, Congresswoman, and
there's a very good reason that for 200 years you haven't seen
these things going back and forth. What's next? I think the
next thing would be for House committees to subpoena the
constituent files of Senators and for Senate committees to
subpoena the constituent files of the House. You might look to
where there's a privilege over there. There's no privilege but
the two chambers respect each other and in the same--and don't
mess with each other, and in the same way, the House committees
for 200 years have respected and, excuse the colloquialism, not
messed with the state Attorneys General.
Chairman Smith. Thank you, Ms. Edwards.
And the gentleman from Texas, Mr. Babin, is recognized.
Mr. Babin. Thank you, Mr. Chairman, and I want to thank you
witnesses for being here today.
I would like to, in light of what my distinguished
colleague from the other side of the table asked, I'd like to
ask you a question, Professor Turley. Under the House Rules and
the Committee Rules, isn't it true that our Chairman of SST
here has the authority to issue subpoenas without a vote of the
full Committee?
Mr. Turley. Yes, it is.
Mr. Babin. Okay. Thank you.
And now I'd like to enter into the record, I'm asking
without objection, a Wall Street Journal op-ed that was written
by Professional Foley, which says--asks us to read for how far
the left will go to enforce climate change orthodoxy and that
the ultimate goal would be to chill First Amendment rights for
those who are dissenting from this--from their theory that
human-caused climate change will be a disaster. I submit that
the disaster will be coming from the chilling of our research
and development----
Chairman Smith. Without objection, the op-ed will be in the
record.
[The information appears in Appendix II]
Mr. Babin. Okay. Thank you.
I submit that that will be--the biggest disaster will be
the chilling of First Amendment rights for free speech and the
arena of thought and ideas for our scientists. And so I would
like to ask you, Professor Foley, a couple of questions.
Do you agree that the Committee's legislative jurisdiction
includes the authorization over the federal government
scientific enterprise that we fund?
Ms. Foley. House Rule X clearly says so.
Mr. Babin. Absolutely. Okay. And then also, do you agree
that the investigatory actions of the Attorneys General will
have an impact on research and development?
Ms. Foley. Oh, absolutely, not just of ExxonMobil but the
scientists involved in climate change research as well as the
nonprofit organizations.
Mr. Babin. Okay. Thank you. And the suppression and
intimidation and persecution of scientific research and
development is absolutely nothing new, as we heard my
colleague, Barry Loudermilk from Georgia, say. Copernicus,
Galileo, perfect examples of that.
So I would also ask you if you are claiming--excuse me--
that the Attorneys General are claiming that the subpoenas are
unconstitutional based on federalism principles? You alluded to
this, I think, earlier in the questioning, but isn't this
ironic that we would see the groups that are collaborating with
these Attorneys General have gone against federalism many, many
times in the past and now are claiming that as a defense. Do
you--is your--is it your analysis of the Committee's subpoenas
to the Attorneys General of New York and Massachusetts
represent a legitimate Congressional inquiry into what of these
warrants--excuse me--that would warrant compliance?
Ms. Foley. Yeah, absolutely. You know, this Committee under
House Rule X has the authority to investigate matters relating
to scientific research and development. The House as a whole
and certainly this Committee with jurisdiction over scientific
research and development has the responsibility, really the
absolute duty, to make sure that state officers including state
Attorneys General do not violate individuals' federal
constitutional rights including the First Amendment, and
therefore if the state AGs are taking action that would chill
the First Amendment freedoms of scientists. This Committee can
take cognizance of that and can issue subpoenas to get at the
heart of the matter.
Mr. Babin. Okay. That's all I have, Mr. Chairman. Thank
you.
Chairman Smith. Thank you, Mr. Babin.
And the gentleman from Illinois, Mr. Foster, is recognized.
Mr. Foster. Thank you, Mr. Chairman, and thank you to all
the witnesses here today.
You know, as the only Ph.D. scientist in the U.S. Congress,
I have to say that I'm sort of disappointed with today's
hearing. The job of the House Science, Space, and Technology
Committee is supposed to be oversight of the federal
government's research and development agenda, so I'm rather
disappointed that instead of having a serious conversation
about how to analyze and mitigate the effects of climate
change, we are taking about subpoenas and legal arguments
involving shareholder fraud investigations by states' Attorneys
General. Instead of learning about the next generation of
batteries or discussing how to ensure that the United States
stays on the leading edge of scientific discovery and
innovation, we're here arguing about subpoenas that have been
issued unilaterally and I believe irresponsibly by the Majority
party that controls this Committee.
Now, I'm not a lawyer. I am a scientist and a businessman,
and as a businessman, I understand that a company's management
has a real duty to inform its investors in a timely manner when
it becomes aware of dangers that put the financial viability of
its products at risk in exactly the way that a drug company
must inform its investors in a timely manner when, for example,
its research uncovers a significant side effect or dangers from
a drug that it is developing or marketing. To do anything less
is fraud, and the investigations into potential fraud by
states' Attorneys General is simply doing their job.
But while I cannot speak with authority on the legal and
jurisdictional hairs that we're splitting here today, I can
speak on the scientific ones. There is no doubt that the fossil
fuel industry is carrying on its books trillions of dollars of
proven reserves and there is no doubt that the scientific
reality of fossil fuel-induced climate change calls into
question their ability to economically extract these assets,
and because the real issues here to me are not just legal and
jurisdictional ones; they're scientific and in fact political,
and whether or not this hearing ends up being just another
gigantic waste of time and taxpayer money depends really on how
the science underlying global warming lands. This hearing, to
my mind, is just another example of a rear action by a group of
people who didn't accept the facts of climate change and are
abusing their positions in the Majority to undertake hearings
that will in fact end up being a giant waste of taxpayer money.
It's long past time that this Committee accepts the
scientific facts of climate change like the vast majority of
scientists have and take on the very serious work of figuring
out where we go from here as a country and as an economy. This
is the challenge of our lifetime.
And now if I could make a small effort to try to actually
return to a scientific point here, Professor Rotunda, I was
fascinated by what seemed to be your support of an argument
that the Greenland ice sheet would melt and thereby lower the
sea level, and I was wondering if you can expound on how
exactly the physics of this works.
Mr. Rotunda. I'll try to summarize. I gave you the citation
for the article and I'll summarize I think what the Harvard
professor said. Ice has mass. Mass has gravity. When the ice
sheet melts, all the gravity that was then part of the island
in Greenland disappears into the ocean, just goes away, and
that ice has been pushing Greenland down,and pulling the water
up, and now Greenland will be moving up because the water is
all over the place. He said that Netherlands should be more
worried about the Antarctic ice rather than the arctic ice.
Now----
Mr. Foster. So is it your belief that when Greenland ice
sheets melt, there will obviously be a local effect where the
land will pop up where the load of the ice sheets.
Mr. Rotunda. So 2,000 kilometers away, up to 2,000
kilometers away----
Mr. Foster. But overall, the effect just from general
principles has to be to significantly raise water levels
worldwide unless----
Mr. Rotunda. Well, we----
Mr. Foster. --there's new physics I'm not aware of, I think
that's sort of fundamental.
Mr. Rotunda. Read his article. I mean, that's what he says.
Mr. Foster. Now, this was a peer-reviewed journal or----
Mr. Rotunda. He--the article is summarizing his research,
which was in peer-reviewed journals. I read it in the
translation form in Harvard magazine. He said that he liked
doing the Pliocene Age because it was far away and not subject
to this controversy. When he--as he studies this, he discovers
it has an effect today. He puts his math in his papers, which
were peer-reviewed and published. It's an article about review.
In fact, you illustrate the problem of scientists, that he
can't believe this, that can't be right, so we should
investigate. In fact, we have this strong world that----
Mr. Foster. Has he come under any----
Mr. Rotunda. Let me finish my sentence. When the House of
Representatives sent a subpoena to non-government NGO groups,
that's chilling. When the state attorney general sends
subpoenas to NGOs and threatens criminal prosecution, that's--
--
Mr. Foster. I'm trying to answer a scientific question. It
just seems amazing that the overall water levels would change
in the direction that you seem to believe----
Mr. Rotunda. For 2,000 kilometers. After that----
Mr. Foster. Oh, you're talking about the local depression,
but it would be a big problem for the rest of the world if the
Greenland ice sheets----
Mr. Rotunda. Well, I mean----
Chairman Smith. The gentleman----
Mr. Rotunda. --it's not going to be a problem----
Mr. Foster. Anyway, I am past my time here, and at some
point I'd like to return to science in this Committee, and
thank you.
Chairman Smith. Thank you, Mr. Foster.
The gentleman from Alabama, Mr. Palmer, is recognized.
Mr. Palmer. Thank you, Mr. Chairman. I just want to raise
something that ought to be obvious to everybody on the
Committee about this. Article I, section A, clause 8 says in
regard to the power of Congress ``to promote progress of
science''--that's among our delegated powers. I have always
assumed when I was asked to come on this Committee that we had
that authority.
With regard to the federalism argument, this Committee is
not seeking to commandeer the AGs' investigations. We can do
that together and coexist. Our investigation and the AGs' is in
regard to how this impacts what we do here, and in regard to
our jurisdiction, I mentioned to promote progress of science,
it appears to me that many of our colleagues have pointed out
the actions of the AGs appear to be aimed at specific groups
and the scientists whose research findings are in opposition to
the findings of other groups. And to Professor Turley's point
about a chilling effect on the First Amendment, I think it has
a chilling effect on scientific research. Do you agree with
that?
Mr. Turley. I do, and I think it's broader than what's been
suggested. As an academic, one of the things that concerned me
when I first read about these investigations is that when you
suggest that the conclusions that these scientists reach as to
their skepticism or opposition to climate change research could
be the basis of a fraud investigation, it doesn't just affect
them, it affects the universities. Universities accept grants.
Academics can come under pressure from universities.
Universities don't want to get pulled into some type of fraud
investigation. That's the reason I prefer to have this debate
handled between academics and advocates in the public realm,
not through indictments or subpoenas, and so it depends on
whose ox is being gored here, but there are public interest
organizations on the other side who felt threatened by the
state investigation. There's public interest organizations on
the other side that feel threatened by this Committee. There's
groups on both sides. I don't distinguish between them.
And also, during the tobacco investigation, you had the
subpoena of groups associated with the tobacco industry. There
wasn't a hue and cry about it but those were directed towards
not-for-profit organizations. So once again we have to separate
between the policy choice and the legal issue, between the
rhetorical and the constitutional, and frankly, I don't see the
threshold problem.
Mr. Palmer. Well, that--I think that's the point we've made
here is that we have jurisdiction over this, that we do have a
legitimate legislative purpose to investigate. Would you agree
with that, Professor Rotunda?
Mr. Rotunda. Absolutely.
Mr. Palmer. Professor Foley, the federal government and by
extension Congress is entitled to act within its delegated
powers. Is that correct?
Ms. Foley. Yes.
Mr. Palmer. And would you agree that Article I, section A,
clause 8 is delegated power?
Ms. Foley. Yes.
Mr. Palmer. So we're here for a good reason. Would you
agree with that?
Ms. Foley. I hope so.
Mr. Palmer. Well, that's great, because I'd hate to be
wasting my time, Mr. Chairman, coming here to talk about this.
My concern too, and this has been mentioned by our
colleagues on the other side of the aisle a number of times
about the money that's involved here. You know, they implied
that there's a political agenda, there's a money agenda. I just
want to point out that we've got a number of billionaires, one
of whom, Tom Stiler, who pledged $100 million in contributions
to pro-environmentalist Congressional campaigns--I don't think
you can avoid the politics of it but I really don't think
that's what this investigation ought to be about. This
investigation ought to be about protecting the rights of
scientists to do their jobs. It doesn't matter whether or not
we agree with their findings. But everybody should be able to
conduct scientific research without the fear of reprisal from
the government at any level. I'll open that up to the panel.
Would anybody agree or disagree with that?
Mr. Turley. Agree.
Mr. Tiefer. Disagree.
Mr. Palmer. You disagree? I'm shocked. Well, my time----
Mr. Tiefer. If I can just say why?
Mr. Palmer. So you think the government has a legitimate
role to impose itself upon scientific research, to act----
Mr. Tiefer. No, that's not what you asked.
Mr. Palmer. --in a heavy-handed--no, that's what exactly
what I asked. I asked, does--should scientists be able to
conduct their research without fear of reprisal from the
government, honest, legitimate research, and you disagreed with
that, and I find that shocking.
Mr. Tiefer. There's fraudulent statements being made by
Exxon when it says there's no peril by----
Mr. Palmer. Well, you're talking about Exxon and you're
talking--and you're trying to make them----
Mr. Tiefer. It's fraudulent.
Mr. Palmer. I'm talking principle, you're talking politics.
Mr. Chairman----
Chairman Smith. The gentleman's----
Mr. Palmer. --just--I'd like to enter something into the
record in regard to the wonderful new discovery by our Democrat
colleagues and the Tenth Amendment. If it's okay with you, I'd
like to enter the Constitution into the record.
Chairman Smith. Without objection. Do you want to limit it
to any particular part of the Constitution?
Mr. Palmer. Why don't we limit it to Article I and the
Tenth Amendment.
Chairman Smith. Great. Without objection, that'll be made a
part of the record.
[The information appears in Appendix II]
Mr. Palmer. I yield back.
Chairman Smith. The gentleman from Colorado, Mr.
Perlmutter, is recognized.
Mr. Perlmutter. Thanks, Mr. Chair, and thank you to the
panel.
First question. Nobody on the panel is a chemist, are they?
Anybody a physicist? Anybody an astronomer?
Ms. Foley. Amateur only.
Mr. Perlmutter. Amateur astronomer.
And Professor Rotunda, I've had a chance to read some of
your articles, and you kind of have an opinion about a lot of
different things--anti-Semitism, buying cars, the export-import
bank, a number of different things. You're kind of a
philosopher about some things, are you not?
Mr. Rotunda. A philosopher? I hadn't thought about it that
way but I like you, yes.
Mr. Perlmutter. And I like your tie, by the way.
Mr. Rotunda. Thank you.
Mr. Perlmutter. So just a couple questions, and first, Mr.
Chairman, I'd like to introduce into the record a letter to you
dated September 13th from some 2,100 scientists concerning that
there is no chilling effect concerning the activities of these
Attorneys General.
Chairman Smith. Without objection.
[The information appears in Appendix II]
Mr. Perlmutter. But nobody's a scientist on the panel,
correct? You're all law professors.
So I just--you know, we've been going through jurisdiction.
Can somebody, Professor Turley, define jurisdiction for me. I
mean, let's get back to the basics here because we're talking
about whether the power of the Congress exists to subpoena
Attorneys General or anybody else, for that matter. What's the
definition of jurisdiction?
Mr. Turley. Well, the courts look at jurisdiction in terms
of----
Mr. Perlmutter. I didn't ask the--what's your definition of
jurisdiction?
Mr. Turley. Well, my definition necessarily is going to be
what is legally recognized----
Mr. Perlmutter. What is your definition of jurisdiction?
Mr. Turley. It is the scope of authority that this
Committee has through sources like the Constitution----
Mr. Perlmutter. The scope of authority that anybody, a
court might have to exercise power, exercise--whether it's over
a territory or a person, correct?
Mr. Turley. Sure.
Mr. Perlmutter. So some of you have referenced the rules
that we operate by here in the Congress, and I don't know, I've
got the book here someplace. Oh, here it is. Okay. And so my
question is anybody take a look at--Professor Foley, you looked
at Rule X, I assume, subsection P, correct? And you've listed
that in your statement?
Ms. Foley. Correct.
Mr. Perlmutter. And you also--so you think that there is at
least subject matter jurisdiction----
Ms. Foley. That's correct.
Mr. Perlmutter. --by this Committee to reach out to these
Attorneys General?
Ms. Foley. Correct, to investigate scientific research.
Mr. Perlmutter. So my next question to you is, did you look
at Rule XI, clause II, section 3(a)(1)?
Ms. Foley. Well, tell me what it says and I'll tell you----
Mr. Perlmutter. It says ``Except as provided in subdivision
(a)(2), a subpoena may be authorized and issued by a committee
or subcommittee under subparagraph (1)(b) in the conduct of an
investigation or a series of investigations or activities only
when authorized by the committee or subcommittee, a majority
being present.''
Ms. Foley. Yes, I've seen that.
Mr. Perlmutter. You've seen that. Do you know when we took
a vote, when this Committee took a vote to issue these
subpoenas?
Ms. Foley. I'm not aware of----
Mr. Perlmutter. Did you ask?
Ms. Foley. --the goings-on----
Mr. Perlmutter. Did you ask?
Ms. Foley. No. My understanding is that this Committee has
been given the authority to--via the Chairman to issue a
unilateral subpoena.
Mr. Perlmutter. Do you think the Committee is limited by
the Rules of the House?
Ms. Foley. I'm sorry?
Mr. Perlmutter. Do you think this Committee is limited by
the Rules of the House?
Ms. Foley. I hope so.
Mr. Perlmutter. I mean, I can't--can I go out--under your
theory of the law, can Ed Perlmutter go issue a subpoena to
Attorney General Biondi in Florida and say okay, why did you
not pursue Trump University? Can I do that? Do I have that
authority?
Ms. Foley. Because you're not the Chairman of the
Committee, no, you do not.
Mr. Perlmutter. Okay. So the Chairman of the Committee may
have that authority. Do you know whether we took a vote?
Ms. Foley. I do not know what----
Mr. Perlmutter. You're assuming that we did. Are you
assuming that we did?
Ms. Foley. Here's what I do know. I'll tell you what I
know. Maybe that will help.
Mr. Perlmutter. Do you know whether----
Chairman Smith. Let Professor Foley respond. If you're
going to ask questions, let her respond to the question. Let
her respond to the question.
Mr. Perlmutter. I asked a question. Do you know whether we
took a vote on the subpoenas to these Attorneys General?
Ms. Foley. My understanding is that that is not necessary
because the Chairman of the Committee has unilateral authority.
Mr. Perlmutter. Okay. So let me ask you this. In issuing
these, do you think that 3(a)(1) limits the authority of the
Chairman?
Ms. Foley. I believe that it is my understanding that the
Chairman of this Committee has unilateral authority to issue
subpoenas.
Mr. Perlmutter. Okay. And do you know how many subpoenas
have been issued by the Science Committee since its beginning?
Ms. Foley. No clue.
Mr. Perlmutter. Until this year and last year?
Ms. Foley. No, sir, I do not know.
Mr. Perlmutter. Okay. What if I told you that since 1958,
only one subpoena has been issued by this Committee, would that
surprise you?
Ms. Foley. No, and I would not see the relevance to this
particular issue.
Mr. Perlmutter. Okay. So--and that was a subpoena involving
Rocky Flats, which is in my backyard, and costs the country
several billion dollars to clean up. Would it surprise you if I
told you that during this session, we've issued 24 subpoenas?
Ms. Foley. I would say you have an active and interested
Committee.
Chairman Smith. The gentleman's time is expired, but let me
correct him. I think it's 25 and still counting.
Mr. Perlmutter. All right.
Chairman Smith. Thank you, Mr. Perlmutter, for your
questions.
The gentleman from Illinois, Mr. LaHood, is recognized for
his questions.
Mr. LaHood. Thank you, Mr. Chairman.
Mr. Chairman, I ask unanimous consent to enter into the
record an article published in the Washington Times that
discusses the public disapproval of the Attorneys General's
investigation. The article highlighted a recent poll that shows
a majority of voters including Democrats oppose the
investigation.
Chairman Smith. Without objection. Thank you for putting
that in the record.
[The information appears in Appendix II]
Chairman Smith. By the way, just to clarify, that was 65
percent support what we're doing and only 15 percent support
the Attorneys General.
Mr. LaHood. Thank you, Mr. Chairman, and I want to thank
the panel being here today. Excellent panel and a good
discussion.
And while I've enjoyed Professor Tiefer for being here, I
would have enjoyed as the minority witness having Attorney
General Schneiderman here. It would have been nice to have him
here to justify why he's engaged with this obstruction, and he
seems like a very capable, smart, accomplished guy who's not
afraid to be in the limelight on a lot of different issues, but
it would have been nice to have him here to explain that legal
reasoning for why they continue to obstruct, and so--and I
would also mention, you know, it's been written just recently
in the Wall Street Journal that this investigation by the
Attorneys General is ``unraveling.'' We had a federal district
court judge here in Washington, D.C., that basically ridiculed
the U.S. Attorney from the Virgin Islands on the subpoenas that
were issued, and I think that's an interesting read if you look
at that. And so it would be nice to hear firsthand on the
justification, and we don't have that here today.
I guess, Professor Turley, in looking at the legal
foundation or principle that the Attorneys General are relying
on, what is that in your view?
Mr. Turley. Well, I find it very problematic, the idea
that--look, you can say that the refusal to accept your view
amounts to fraud. You know, that's a very easy thing to do.
It's a conversation stopper. We tend not to do that in
academia. We tend to present countervailing views with our
colleagues. There are many people, not just scientists but
citizens who don't agree with the climate change research. I
happen to agree with it, but there are many people I know that
do not. It is an ongoing debate. To treat that as a matter of
fraud for a company to be opposed to the thrust of that
research, I think is a dangerous precedent.
You know, the framers were very concerned about what was
called majoritarian tyranny, the idea that in a democracy
there's a sort of dormant virus that exists where you can have
the majority become a threat to its own freedoms, and part of
that is to declare certain facts as inviolate and the denial of
those facts to be now crimes or fraud. That characterization
alone doesn't have any magic impact upon the jurisdiction of
this Committee. You can disagree with what the Committee's
doing but in terms of the authority to do it, I'd be surprised
if you would want to maintain that position because the next
case maybe state AGs who are unraveling other rights that are
considered more dear or suggesting that certain facts are now
facts that cannot be denied, and that's the reason this is so
troubling.
Mr. LaHood. And just to follow up on that, Professor
Turley, I mean, for the layperson out there when we talk about
these subpoenas, I mean, we're not asking--the subpoenas in no
way ask the Attorneys General to stop their investigation or
stop what they're doing, correct?
Mr. Turley. That's right. It's to demand information, and
that alone as a court has been very strong in terms of
supporting the right of committees to get that type of
information. Where the court has problems is when you order
state agencies to enforce or carry out federal functions.
That's where you cross the line into commandeering agencies.
But submission of reports--there was a recent case probably
about 2002 called Freelig in the 4th Circuit where they
rejected this type of claim, that the submission of information
was unconstitutional, and they said that's part of information
gathering.
Mr. LaHood. And I would also mention there was some comment
from the other side that we're not asking that they can't
enforce their laws in their state or anything like that,
correct?
Mr. Turley. Correct.
Mr. LaHood. And Professor Foley, is it your legal opinion
and analysis that no state official may resist a federal
subpoena if there's a federal nexus there?
Ms. Foley. Yes, as long as you have a legitimate
investigative purpose.
Mr. LaHood. Thank you. Those are all my questions, Mr.
Chairman.
Chairman Smith. Thank you, Mr. LaHood.
And the gentlewoman from Massachusetts, Ms. Clark, is
recognized.
Ms. Clark. Thank you, Mr. Chairman. I would like to thank
our panelists, and I'd like to thank Ranking Member Johnson for
all of her and her staff's hard work on this issue, and I'd
like to express my unequivocal support for the Attorney General
from Massachusetts, Maura Healey, and the other Attorneys
General who have been subjected to, in my opinion, truly
disturbing Congressional overreach and interference with their
jobs. There are a lot of people who believe this is a gross and
unconstitutional overreach of Congressional power who are not
able to testify at this hearing.
At this time I'd like to ask unanimous consent to enter
three documents into the record. The first is a letter from 14
prominent lawyers and advocacy groups expressing their
opposition to this Committee's subpoenas. The second is a
letter, and I have it here, with 32,000 signatures of citizens
in opposition to what we are doing today, what we are
discussing, and these subpoenas. And the third is a passionate
editorial from the Boston Globe calling this process
``Congressional bullying on behalf of Big Oil.''
Chairman Smith. Without objection, those three documents
will be made a part of the record. You may want to reconsider
the second one because that was an online petition where one
individual could sign up a thousand different names, and we had
such people on that petition like Karl Rove, who I doubt
seriously would have signed it, and we have individuals from
the city of Newark, Delaware, and Dystopia, Alaska, and other
made-up names. So just bear that in mind. Without objection,
though, those documents will be made a part of the record.
[The information appears in Appendix II]
Ms. Clark. Thank you.
With that said, Professor Tiefer, I have some questions for
you. I'd like to talk about the basis for the state
investigations that led to the subpoenas we're discussing
today. Documents indicate that internally for decades, Exxon
has known that the burning of fossil fuels would contribute to
the change in climate, in global climate. Meanwhile, outwardly
it appears the company worked to sow doubt in the growing body
of evidence surrounding climate change among the general public
and its own investors.
Whether or not anyone is ultimately successful in proving
that Exxon defrauded, committed a crime, it is the state
Attorneys General responsibility and their province to
investigate crimes against their constituents and that are
based on state law, and that includes fraud, and we know from
U.S. versus Philip Morris that fraud is not covered by the
First Amendment.
I have a mom who suffers from Alzheimer's but she still
likes to answer the phone, and she believes people who are
calling her, and we get a lot of calls, supposedly from the
IRS, supposedly from people who are going to sell her a
contract to fix her computer she doesn't own. It goes on and
on. We get a lot of magazines that are, shall we say, age-
inappropriate because she is defrauded. If Attorney General
Maura Healey decided under state law consumer protection like
is the basis of the case we are discussing today to pursue a
fraudulent claim for consumer protection purposes, is that--and
then this Congress decided to get involved, and to hold an
investigation into that investigation, do you see there would
be any grounds for Congress? And if not, is there any
difference in this case?
Mr. Tiefer. Thank you, Congresswoman. To go to one part of
your question, the case went to the Supreme Court about whether
the Florida Attorney General could look into fraud in
charitable solicitations, which is one kind of what you're
talking about coming in over the phone and the Supreme Court
said it's fraud, the state AG can look at it. That's my short
answer. Do you want a longer answer?
Ms. Clark. What I want to know, is there any difference? If
Congress decides to interfere in that investigation, couldn't
we be chilling the First Amendment rights of those companies?
Mr. Tiefer. You mean the companies----
Ms. Clark. The fraudulent companies.
Mr. Tiefer. Well, it would be said that you--you can say
that when Congress investigates it's chilling things----
Ms. Clark. No, I'm talking about if the investigation,
would that be--wouldn't that be chilling those rights and
wouldn't that give Congress a right? We have many laws
regarding investments, the IRS, a whole bunch of topics on
which there is consumer fraud in states. Don't we need to be
protecting those First Amendment rights of those companies?
Mr. Tiefer. The short answer is, there's no--Congress
doesn't get the investigative right just because Attorneys
General are looking into fraud. There's no comparison. AGs are
enforcing the law. We're only allowed to do oversight, and in
this Committee's case at the federal level.
Ms. Clark. I am also concerned that these messages--the
message these subpoenas and this hearing is sending that if a
company is big enough, it can commit fraud and know that at the
hint of an investigation, Congress is going to step in and
protect it, and conversely, the state officials should not dare
to investigate major companies for state offenses without being
prepared to be dragged in front of Congress. We can already see
in the Virgin Islands citing limited resources, they have
already withdrawn its investigation.
In your opinion----
Chairman Smith. The gentlewoman's time has expired. She's
welcome as others to submit questions to the witnesses and
we'll get responses.
Ms. Clark. Thank you.
Chairman Smith. Thank you.
The gentleman from Illinois, Mr. Hultgren, is recognized.
Mr. Hultgren. Thank you, Mr. Chairman. Thank you all for
being here. I know your time is very valuable, and we
appreciate you being a part of this.
I want to address my first couple questions to Professor
Turley and also Professor Foley if that's all right.
According to the District Court, must groups asserting a
First Amendment claim still define the universe of responsive
documents and search for those documents even if they maintain
that those documents are privileged and must groups produce
documents responsive to a Congressional subpoena that are not
privileged?
Mr. Turley. If I understand your question correctly, the
issue of free speech arguments and privilege arguments are
generally raised in the process of answering subpoenas. You can
do that through the submission of an index. You can note on the
index privilege or other objections to be made. You work it out
with the Committee. Whether a privilege is accepted by a
committee has been left to the committee when you're talking
about non-constitutional privilege.
Mr. Hultgren. Professor Foley?
Ms. Foley. Yes. It's typical to provide a privilege log and
have in-camera inspection by the court.
Mr. Hultgren. Okay. According to the court, must those
groups also provide Congress with a detailed privilege log like
you're talking about delineating what information they are
asserting a First Amendment claim to, and what would that
adequate privilege log look like going into a little bit more
detail of what you've referenced? For example, does the party
asserting the privilege need to specify facts that would
establish each element of the privilege they seek to assert or
is it simply pointing to swaths of documents including that a
privilege applies or not?
Ms. Foley. Yeah, under the Federal Rules of Civil
Procedure, if you claim objection based on privilege, you must
provide a statement as to the basis for that privilege to allow
the court--the opposing party to understand the basis of your
objection and then of course the full document is submitted to
the court for inspection.
Mr. Hultgren. Mr. Turley, any other thoughts on that?
Mr. Turley. That's right, and one of the things that comes
up then when you submit these types of indexes or logs with
these objections is also the question of whether this material
has been previously disclosed. One of the issues that would
come out of this controversy is that many of the groups were
open about their coordination on this campaign so there is in
fact a lot of public information which tends to waive privilege
objections and also there is this question of things like the
Vermont public records law being able to get records that
perhaps this Committee has not received, and so those are the
types of conflicts that are then explored with Committee staff
and with these groups.
Mr. Hultgren. Asking the same two witnesses, going a little
bit further on the privilege, First Amendment privilege, do the
Attorneys General not have the ability to assert this Attorneys
General not have the ability to assert this privilege because
there is a lack of standing?
Mr. Turley. I'm not too sure I would agree that they don't
have the ability to assert the privilege. I think that when it
comes to committee objections certainly and dealing with
committees, you do have free speech objections that are raised,
associational questions, it seems to me that the AG does have a
legitimate issue here in telling the committee look, some of
these communications are with people coming to us and saying we
want an investigation, and that's going to chill what we do if
you make those disclosures, and those are the types of
compromises committees can work out. They can allow redactions,
they can allow summaries, and that's very common.
Mr. Hultgren. Professor Foley?
Ms. Foley. So long as the state Attorneys General are
raising their own privileges, they have the standing to assert
them.
Mr. Hultgren. Just going, I guess, more your thoughts and
opinions as you've studied this, do you believe the Attorneys
General are attempting to raise an impermissible defense solely
for the purpose of attempting to garner positive press coverage
and cast the Committee's investigation in a negative light?
Again, this is your personal opinion.
Mr. Turley. I wouldn't say that. I think that the state--I
think these Attorneys General do have legitimate issues to
raise. I don't agree with their investigation. I think the
investigation is very problematic in terms of academic freedom
even though I don't subscribe to the view being investigated. I
have a serious problem with it as an academic. But I also think
that these AGs have legitimate issues to raise. This is our
investigation. We are two separate sovereignties. But you've
got to keep in mind that it's not uncommon for the federal and
state bodies to have overlapping jurisdictions in areas of the
environment and other areas. It's very common for the Congress
to butt up against these agencies, and sometimes the agencies
themselves are the problem that Congress is looking into.
Mr. Hultgren. Professor Foley?
Ms. Foley. My personal opinion would be that when the
Attorneys General use their prosecutorial power to investigate
scientists because the scientists are not embracing an orthodox
view of climate change or anything else, that that is an abuse
of prosecutorial power.
Mr. Hultgren. Again, thank you all so much for being here.
I appreciate your time and your expertise on this.
With that, I yield back, Chairman.
Chairman Smith. Thank you, Mr. Hultgren.
And the Ranking Member, Ms. Johnson, is recognized.
Ms. Johnson. Thank you very much. I just wanted to make a
correction on the survey that Representative LaHood read. The
question that he asked was, should the government investigate
and prosecute scientists--wait a minute--and others including
major corporations who question global warming. The question
was whether or not they could question scientists and not in
general.
Chairman Smith. That's correct, and it was 65 percent
versus 15. Is that correct too? Fifteen percent, they should
not?
Ms. Johnson. Well, the question should have been to the
Attorneys General, not the scientists.
Chairman Smith. Okay. In any case, we've made that poll a
part of the record. People can read it.
The gentleman from California, Mr. Rohrabacher, is
recognized for questions.
Mr. Rohrabacher. I was at a doctor's appointment all
morning. I apologize for missing this important hearing. Let me
just express my concern, Mr. Chairman, that in the last year of
this Administration, just time and time again I've been
confronted with arguments about why someone who fundamentally
disagrees with the ideology of the Administration is a bigot or
is now, the latest one, deplorable or is actually some kind of
a fascist or a homophobe or whatever. The Commission on Civil
Rights simply just--the head of the Civil Rights Commission, I
understand, talked about freedom--people talking about
religious freedom and claiming religious freedom are really a
bunch of bigots. Well, look, and now we have, you know, a
candidate talking about people being deplorable, and this
suggests to me that what we have here is a breakdown in the
respect that people should have for each other and for varied
opinions in our society, and I think the worst example of
that--and I'm sorry that I missed your testimony and I will
read it and read the transcript from this hearing--the worst
example is when you have a group of people over a very serious
issue, scientific issue, which is global warming, where you
have not only paying saying you're wrong or even calling you
names but now even taking steps to try to silence someone who
disagrees with them. This is outrageous. This is something that
we--that nobody on either side of the aisle should excuse. We
have our backs and forths, and for us to look into this I think
was vitally important for the basics, and the basics, if we
don't have freedom to express our scientific disagreements, we
don't have that, and instead efforts are made to silence
someone. That is definitely something that we should not
ignore, and I'm very proud of our chairman for making this an
important issue of discussion today.
I'm sorry I don't have anything else to add, but I will----
Chairman Smith. That's a good way to end.
Mr. Rohrabacher. But I will----
Chairman Smith. I appreciate those comments.
Mr. Rohrabacher. I will read the hearing testimony.
Chairman Smith. The gentleman from Arkansas, Mr. Westerman,
is recognized for his questions.
Mr. Westerman. Thank you, Mr. Chairman. I would also like
to thank the witnesses for being here today, and the question
was asked earlier if any of you are scientists, but I would
like to ask the question, are you all constitutional lawyers?
And the subject we're addressing today is on a matter of free
speech, not necessarily the issue of what the free speech is
over, so I appreciate you being here with your expertise.
Professor Foley, I would like to ask you, is the First
Amendment a blanket shield that can be used to prevent
compliance with Congressional subpoenas?
Ms. Foley. No, it's never been viewed that way by the
court, and in fact, in the criminal contempt cases where it has
been raised, what the court has said needs to happen is a
balancing. It balances on the one hand the weight of the
interest of Congress in obtaining the information, which is
usually given what the court calls great weight, and they
balance that against the interest of the private individual
from whom the information is being sought, and unless the court
sees some prima facie evidence that the information is being
sought by Congress for the purpose of harassment or
intimidation, usually that balance comes out in favor of
Congress.
Mr. Westerman. So the U.S. District Court for the District
of Columbia recently ruled regarding a First Amendment
privilege claim in response to a Congressional subpoena. Are
you familiar with this ruling?
Ms. Foley. Which ruling is it? Tobin?
Mr. Westerman. Yes.
Ms. Foley. Yes.
Mr. Westerman. So would you summarize the District Court's
ruling in this case?
Ms. Foley. Yeah, the Tobin case is one of those balancing
cases, and I believe that--let me see if I can find it. I think
I've got it here in front of me. No, I don't. I believe that
the court basically did the same balancing that I'm talking
about, and----
Mr. Westerman. I was actually referring to the Backpage.
Ms. Foley. Which one?
Mr. Westerman. On CEO Carl Farrar on the--Chief Justice
Roberts has currently stayed the Senate committee subpoena, the
Backpage for the legal opinion.
Ms. Foley. I'm not sure which document you're referring to.
Chief Justice Roberts stayed an opinion?
Mr. Westerman. So Professor Turley, are you familiar with
this?
Mr. Turley. Yes. I mean, the District Court gave a very
strong endorsement of the power of Congress to seek the
information. I believe it was Judge Collier who issued the
opinion, a very respected judge. Chief Justice Roberts, though,
did issue a stay and has ordered for further argument to occur.
Mr. Westerman. So given the District Court's ruling, do you
agree that groups asserting First Amendment privileges in
instances where Congressional subpoena has been served cannot
use as a blanket shield to prevent the production of any
information to Congress?
Mr. Turley. Generally, no. Generally, that's an issue
that's worked out with logs and indexes and negotiations. What
you'll notice, by the way, about many of these cases that we're
citing is that in many of the cases, these people did in fact
testify but then they refused to answer some questions, and
those issues went to the court, and on a couple of occasions
the court has said look, that had nothing to do with what your
authorization was, the subject matter, but actually in these
cases what's often ignored is that they actually did respond to
Congress. They did testify. They drew a line as did the NAACP
cases of answering questions with regard to membership. The
idea that you can just say well, look, I have a First Amendment
protection here, I'm not going to respond to any information
that the Committee's seeking including information that may in
fact be public in some regards I don't think would be accepted
by any court.
Mr. Westerman. Okay. So according to the District Court,
groups asserting a First Amendment claim still define the
universe of responsive documents and search for those documents
even if they maintain that those documents are privileged?
Mr. Turley. What you do is you then work that out through
the index and the log. You raise your basis for the privilege.
If it's a non-constitutional privilege, the Committee then has
to decide whether to respect that. In my experience being
around this place for a while, most committees in fact do reach
compromises. A lot of times it's not to have a fight over much
of the stuff, and you can get summaries of redactions that
avoid those issues.
Mr. Westerman. So must groups produce documents responsive
to Congressional subpoena that are not privileged?
Mr. Turley. Yes, and the other thing to remember is that
whatever Congress does, particularly with these groups, are
going to have usually an element of free speech associational
interest. That's very, very common. Every committee has to deal
with that. What is important is that principle doesn't require
you to be civil. It doesn't require you to be consistent, and
the committees of Congress have in fact subpoenaed public
interest organizations like the tobacco groups to produce
information and they've worked out these disputes in the past.
Mr. Westerman. And Mr. Chairman, I would like to submit for
the record an article here. It says the Supreme Court refuses
to block Backpage subpoenas in sex trafficking investigation,
referring to this Backpage case.
Chairman Smith. Okay. Without objection, that'll be in the
record.
[The information appears in Appendix II]
Mr. Westerman. I yield back.
Chairman Smith. Okay. Thank you, Mr. Westerman.
That concludes our hearing. No more members here to ask
questions, and I just want to thank you all. This has been an
excellent hearing because of our outstanding witnesses, and
appreciate all your contributions today and look forward to
staying in touch with you all. Thank you.
[Whereupon, at 12:32 p.m., the Committee was adjourned.]
Appendix I
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Answers to Post-Hearing Questions
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Appendix II
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Additional Material for the Record
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