A Climate Courtroom Crusade Scorches Due Process

  • Date: 12/05/16
  • Philip Hamburger, The Wall Street Journal

Attorneys general demand Exxon’s files without first asking a judge—a case of the fox guarding the hens.

New York Attorney General Eric Schneiderman, with a coalition of his colleagues from other states, announcing efforts to combat climate change, March 29.

New York Attorney General Eric Schneiderman, with a coalition of his colleagues from other states, announcing efforts to combat climate change, March 29. Photo: Reuters

Six months ago, New York Attorney General Eric Schneiderman issued a subpoena demanding that Exxon Mobil turn over records concerning its research on climate change. In March, Mr. Schneiderman took the predictable next step, announcing that a coalition of attorneys general will hold fossil fuel companies accountable. “The First Amendment, ladies and gentlemen, does not give you the right to commit fraud,” he said.

The threat to scientific inquiry and political speech is obvious. Not so widely recognized is the underlying violation of due process. Start with the fact that Mr. Schneiderman and the other attorneys general have relied, as their opening move, on a nonjudicial subpoena to force the disclosure of information.

Traditionally, federal and state governments could demand testimony, papers or other information in only very limited ways. A legislative committee could call witnesses and insist that they appear and testify. But an attorney general who wanted to rifle through a private company’s filing cabinet had to get a warrant signed by a judge based on probable cause, or had to ask a court overseeing a grand jury to issue a subpoena.

Otherwise the attorney general had to wait until he brought civil or criminal charges, and in a criminal case he could get only a very limited version of discovery. As the founding generation knew from experience, government demands for papers could be dangerous.

Much has changed over the past century. When civil discovery of evidence, now a common process, evolved in the late 19th and early 20th centuries, some states, for the sake of convenience, allowed subpoenas for such purposes to be signed not by judges, but by clerks, and then even by parties in cases. The subpoena power thus began to drift out of the hands of the judiciary. [...]

The threats to privacy in our society are not merely technological; they also are legal. In addition to electronic surveillance, nonjudicial subpoenas allow government to examine private documents as if they were an open book. And as shown by Mr. Schneiderman, when attorneys general can issue such subpoenas, a valuable judicial power becomes a prosecutorial threat to liberty and due process.

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