Lamar Smith Hearing Attempts to Bolster Legal Argument for Subpoenas

September 14, 2016
In The News

Rep. Lamar Smith argued on Wednesday that not only does his House Science committee have the authority to subpoena two state attorneys general investigating ExxonMobil, but a constitutional obligation to ensure that science isn't being undermined by such investigations.

But while the committee hearing was ostensibly to address the constitutional issues of Smith's subpoenas, it served as a showcase for scholarly disagreements and political divides.

Looming over the 2½-hour hearing were the questions of whether the committee was abusing its oversight authority to defend the oil and gas industry—and Exxon—against legitimate probes by New York's Eric Schneiderman and Massachusetts' Maura Healey, or whether it was standing up to attempts to suppress dissenting views on climate change.

The genesis of the hearing was the refusal by the two attorneys general to comply with Smith's subpoenas seeking information on their ongoing investigations into whether Exxon misled investors on climate change.

"The documents demanded will allow the committee to assess the breadth and depth of the AG's investigations and inform our understanding of whether their actions have a chilling impact on scientific research and development," Smith said in his opening remarks.

"The question we explore today isn't partisan, it's institutional. Allowing subpoenaed parties to ignore compliance based on the politics of the subject sets a dangerous precedent."

Eddie Bernice Johnson, the ranking Democrat on the committee, called the hearing politically motivated and designed to advance the agenda of the fossil fuel industry.

"The Majority has claimed that their investigation is about protecting the First Amendment rights of ExxonMobil," Johnson said.

"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 AGs and the courts, not the Committee on Science."

The hearing brought no resolution to the question of the committee's authority and Smith briefly discussed the possibility of going to court to force the AGs' compliance. 

Smith called the hearings as part of his escalating hostilities with Schneiderman and Healey.

Smith has charged that their investigations are politically motivated, while absorbing the same criticism for his defense of Exxon, the largest corporation in his home state.

The two attorneys general and eight non-governmental advocacy groups have refused to comply with subpoenas issued by Smith in July. The subpoenas demand documents pertaining to the ongoing investigations and any discussions the agencies have had with the organizations.

Eric Soufer, a spokesman for Schneiderman, called the hearing a "farce."

"No amount of Congressional grandstanding will change the simple fact that the Committee has no lawful basis to interfere with a state law enforcement investigation," he said.

"Attorneys General Schneiderman and Healey have launched a serious fraud investigation into Exxon and will not be intimidated or deterred by Big Oil's friends on Capitol Hill."

To bolster his contention that the subpoenas were legally justified, Smith called three witnesses, including two law professors with connections to think tanks funded by the fossil fuel industry and who have been critical of the attorneys general.

The Democratic minority was allowed to call one witness, who once served as the acting general counsel for the House of Representatives.

The first of Smith's witness, Jonathan Turley, a liberal law scholar and professor of public interest law at The George Washington University Law School, opened by saying he was a firm believer in climate change. He also said that did not factor into his view of the subpoenas.

"This committee clearly has the ability to insist on compliance with its subpoenas," Turley said, because the attorneys general have no absolute privilege to shield them.

"Something may be unprecedented is not unconstitutional," Turley said.

Turley agreed with Smith that the state investigations could have a chilling effect on scientific research.

"This was a step too far. It is delving into the area of differences of opinions," he said.

Ronald D. Rotunda, a law professor of at Chapman University's Dale E. Fowler School of Law, also argued that the committee was within its legal bounds to enforce its subpoenas. Rotunda is associated with the Heartland Institute and a frequent contributor to the organization's policy blog, which often features writings challenging the scientific evidence of man-made climate change.

"The American people have a right to know if Mr. Schneiderman is working on his own, or is he part of a corrupt deal with some of these climate groups," Rotunda said. "People that don't comply with subpoenas have something to hide—that's why they don't comply."

Charles Tiefer, a University of Baltimore law professor and former acting general counsel for the House of Representatives, argued against the legality of the subpoenas.

"No House committee has ever tried—nor should ever try—to enforce subpoenas against state attorneys general," said Tiefer, the lone witness called by the Democratic minority."The committee has failed to identify even one single House subpoena to a state attorney general in 200 years. The reason? It's never happened."

Remarks and questioning of the witness by the members of the committee revealed a deep philosophical gulf between Republicans and Democrats.

Illinois Democrat Bill Foster lamented that the science committee was wasting its time on the issue.

"We are talking about subpoenas and should be focused instead on assuring that the U.S. remains on the leading edge of scientific discovery," he said.

"It is long past time this committee accepts the facts of climate change and takes on the very of important matter of figuring out where we go to address the biggest challenge of our lifetime."

Mo Brooks, an Alabama Republican, said he wanted to "emphasize something about this quote unquote climate change phrase."

"The so-called climate change debate is about the role humanity has played— if any—in today's version of climate," he said.

It ignores "the cost to humanity in terms of depressed economics of implanting so alleged climate cures."

Shortly before Smith gaveled his hearing to order, a number of Democratic leaders joined with environmental organizations near the Capitol to denounce Smith, to show support for Schneiderman and Healy and urge more state attorneys generals to open investigations of Exxon.

Among those were Rep. Ted Lieu and Sen. Sheldon Whitehouse who have been pressing for investigations of Exxon by the U.S. Justice Department and the Securities and Exchange Commission.

Whitehouse called the tactics being employed by Smith "worrisome" and lambasted the committee's majority as acting as the "agent" of Exxon.

"Exxon is using Rep. Smith as a tool to obstruct the investigations and to obstruct the truth," he said.