Inhofe calls for investigation of researcher Michael Mann

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Republican Sen. Jim Inhofe of Oklahoma will ask the Justice Department to investigate Pennsylvania State University climatologist and White House adviser Michael E. Mann for his involvement in Climategate, Inhofe told The Daily Caller Monday night.

“They’ve been mocking me for years. Redemption is going to feel good,” Inhofe said in a phone interview.

‘Climategate’ is the name given by journalists to the events surrounding the Climatic Research Unit at the University of East Anglia in which emails from researchers at CRU and other international climatologists were leaked to the web. The emails revealed discrepancies in the recording of climate change data, as well as contained poorly maintained computer code, and even allusions to the deletion of any information that could be acquired through Freedom of Information Act requests.

Citing the False Claims Act, which “prohibits certain types of activity generally involving claims for payment of money or receipt of property involving the federal government,” Inhofe, who is the ranking member of the Environmental and Public Works Committee, wants Mann investigated for his use of $500,000 in stimulus funds allotted for climate research. Inhofe suspects that any government funds Mann may have used in conjunction with the IPCC and the Climatic Research Unit would be a violation of the False Claims Act.

The Justice Department “will have to look at what’s happening at Columbia [University], and Penn State [University], and [University of] East Anglia,” Inhofe said, referring to the two American schools whose scholars were mentioned in the CRU emails. Penn State is currently conducting an investigation of Mann’s role in Climategate and has cleared him of many of the charges.

“Most of the Justice Department are Democrats,” Inhofe said when asked what sort of cooperation he expects from the White House. “But no one wants to go down with Obama over this.”

The request for an investigation into Mann will coincide with the release of a 84-page report on the Climategate e-mails, conducted by Inhofe’s office, and the beginning of budget hearings for the Environmental Protection Agency, which Inhofe says is using the IPCC and CRU data to push through greenhouse gas regulations. (In response to pressures from Inhofe and Blue Dog Democrats, EPA Director Lisa Jackson announced Monday night that the EPA had shelved those plans until 2011.)

While containing excerpts from Climategate emails that have been available online since late 2009, Inhofe’s report also contains a section titled, “Legal and Policy Issues in the CRU Controversy,” which contains a list of federal laws and regulations Republicans on the EPW committee believe “are implicated in this scandal.” Among them:

Freedom of Information Act

The Freedom of Information Act provides the public access to government information. The minority staff is examining emails to determine whether scientists deliberately withheld information to prevent FOIA release.  It is worth noting that a federal employee who arbitrarily and capriciously withholds documents which are subject to FOIA release may be subject to disciplinary action.

Shelby Amendment

In 1999, frustration by the private sector and proponents of government transparency over the inaccessibility of data used to support regulations led Congress to pass the Shelby Amendment.  This amendment showed Congress’ direct intent to allow broader access to federally-funded research data by explicitly bringing it into the purview of the Freedom of Information Act.  The act covers research findings both published in peer-reviewed scientific or technical journals, as well as publically and officially sited by federal agencies in support of an agency action that has the force and effect of law.

OSTP Policy Directive

On December 12, 2000, the President’s Office of Science and Technology Policy issued a “Misconduct in Research”  policy applicable government-wide to federal employees, contractors and grantees.  Each agency was required to issue its own policy that followed the OSTP directive within a year of the effective date. The policy establishes procedures and interim and final sanctions related to misconduct.  The highest penalty, in addition to any criminal liability, is debarment.

Federal False Statements Act

The Federal False Statement Act applies to anyone who, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully: (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, or imprisoned not more than 5 years…or both.”

The false statement must fall within the jurisdiction of the executive, judicial and legislative branches by being within their general authority, and covers offenses spanning the aforementioned three broad categories. Section 1001 also extends to affirmative acts of concealment even where no actual statement has been made.

Moreover, as the case may be with some of these emails and their interaction with the IPCC process (and not US government agencies directly), jurisdiction exists regardless of whether the defendant communicated the statement directly to the government, or knew that the government had jurisdiction over the false statement.

The False Claims Act (Criminal)

The False Claims Act (FCA) prohibits certain types of activity generally involving claims for payment of money or receipt of property involving the Federal government.  The statute does not require a showing of fraudulently intent or actual knowledge of fraud.  The definition of “knowing” is defined as (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information; and requires no proof of specific intent to defraud.

In our legal interpretation, direct interaction between the actor and the government is not needed to trigger liability of this act.  Creating a tampered data base and them making a claim for payment, e.g. for salaries and expenses, which will be paid, in whole or in part, with Federal funds can raise the prospect for a False Claims Act violation.

Obstruction of Justice: Interference with Congressional Proceedings

There are a number of different Federal statutes concerning obstruction of justice.  Most deal with witness tampering, bribery, threats of violence, or mail and wire fraud.  However, Federal statute 18 U.S.C. 1505 concerns obstruction of proceedings before departments, agencies, or committees, which includes Congressional hearings.

When asked if he expects to see more push-back against the EPA and climatologists, Inhofe said, “I think we might. They [Democrats] are coming over one by one. It’s gonna be very difficult to go back to their homes and say they are promoting regulations that are going to cost taxpayers $300 billion. We’ve won on the science.”

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