Think Tank Seeks Damages Over ‘Unlawful’ Climate Subpoena

Competitive Enterprise Institute alleges malicious use of frivolous legal claims by Virgin Islands AG

May 16, 2016

A libertarian nonprofit group is seeking damages from the U.S. Virgin Islands’ chief law enforcement officer, alleging a politically motivated legal campaign designed to stifle the group’s policy advocacy activities.

Attorneys representing the Competitive Enterprise Institute filed a motion in a Washington, D.C. court on Monday alleging that Virgin Islands Attorney General Claude Walker violated a D.C. law designed to prevent frivolous legal actions targeting policy groups’ rights to free speech and government redress.

The motion is the latest chapter in a developing legal battle between conservative and industry groups that oppose Democratic attorneys general in 17 states who are pursuing racketeering charges against oil giant Exxon Mobil.

Walker subpoenaed CEI last month as part of the anti-Exxon campaign. He demanded a decade’s worth of internal documents and communications about the group’s work on energy and environmental policy.

Andrew Grossman, a BakerHostetler attorney representing CEI, called the subpoena "offensive," "unlawful," and "un-American" in an April reply. He vowed to fight the subpoena, which was filed in D.C., where CEI is headquartered.

An attorney representing a group of AGs, including Walker, in their Exxon probe replied on Friday, telling CEI that it is abandoning its subpoena but reserving the right to restart the effort at any point in the future.In response, Grossman and his BakerHostetler colleague David Rivkin filed a motion to vacate the subpoena entirely. They are also asking the court to reimburse CEI for its legal fees and levy additional penalties on Walker’s office as a means of discouraging abuses of the D.C. legal system.

Walker’s "bad faith purpose in wielding this Court’s power to subpoena … warrants sanctions," the attorneys wrote in a Monday motion. "Sanctions are necessary here ‘to punish abuses of the judicial process and to deter future abuses,’" they wrote, quoting a prior case involving D.C.’s anti-SLAPP statute.

The acronym SLAPP stands for "strategic lawsuit against public participation," and refers to efforts to shut down an opposing party’s speech or political advocacy through frivolous lawsuits.

The anti-SLAPP statute in D.C. allows challenges to lawsuits that target speech or actions made "in furtherance of the right of advocacy on issues of public interest."

Such speech includes any "expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest," according to the language of the statute.

CEI argues that its policy advocacy falls squarely within that definition and that Walker’s subpoena was designed to restrict or punish that advocacy, a claim Walker’s office denies.

"This subpoena neither restricts CEI’s speech nor compels speech—it simply seeks the production of documents related to an investigation that is not targeting CEI," wrote Linda Singer, an attorney with the firm Cohen Milstein, which is working for Walker’s office in the CEI case.

According to Singer, a former D.C. attorney general, Walker "has not made a decision" on whether to amend or withdraw the subpoena. But the office said it will withdraw its attempt to enforce the subpoena in D.C. courts "with the understanding that [Walker’s office] will reissue the subpoena" if he changes his mind.

CEI’s move to enforce D.C.’s anti-SLAPP law against Walker would foreclose that possibility.

"CEI will not sit still with this illegal threat hanging over our head, which is why we are asking the court to fine AG Walker and end his abuse of the legal process to intimidate CEI," Kent Lassman, the group’s president, said in a Monday statement.

Published under: Climate Change