Inhofe calls for investigation of researcher Michael Mann

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.”