Attorney Generals Going Rogue: A Symptom of Government Running Amok


July 23, 2016 by Anders Ingemarson

In a blatant attack on free speech, Massachusetts Attorney General Maura Tracy Healey filed a subpoena back in April against ExxonMobil demanding 40 years of communications between the company and a dozen free market groups and universities (Exxon released a copy of the subpoena on June 15, making public the organizations targeted by the AG’s inquisition).

The investigation centers on whether ExxonMobil committed consumer and securities fraud stemming from the company challenging the catastrophic climate change narrative.

As Harry Binswanger pens in the HB Letter (gated) “to demand that a company or think-tank prove that it doesn’t have such documents is an outrageous initiation of force. It’s designed to intimidate, and thus to silence dissent.”

The good news is that ExxonMobil is fighting back, as is the House Science Committee with a counter subpoena of AG Healey. Anybody who is concerned that freedom of speech is under assault should support Exxon and the House Committee in both words and actions.

However, this is not an isolated case of overreach (although it is probably unprecedented in its attack on the 1st amendment). The last few decades have seen an increasing focus by the US and many state AG’s on using individual rights violating laws and regulations to prosecute both corporations and individuals. The AGs going rogue is a symptom of a legal system going broke. The role of the US Attorney General is in essence to represent the United States in legal matters. Similarly, although variations exist between states, the role of the State Attorney Generals is to represent their respective states in the same capacity.

As both federal and state legislation and regulations have expanded dramatically over the last hundred years, the AGs powers have grown exponentially. Today, an AG can basically file suit against a private entity at will; there is always some law or regulation that either has been, or may be interpreted as having been, broken. And as always the prospect of wielding such judicial powers attract the worst among us, as evidenced by the long line of AG’s going after productive individuals and enterprises-–Rudy Giuliano, Elliot Spitzer, and now Maura Tracy Healey to mention a few of the more familiar names.

The long term solution is obviously to roll back regulations and repeal individual rights violating legislation. Advocating for such change is at the core of championing the moral case for separating state and the economy. The fact that all regulations and much legislation violate our individual rights to life, liberty and the pursuit of happiness makes them immoral, and consequently makes the AGs actions immoral.

What would be the role of the Attorney General in a free society with total separation of state and the economy? At the federal level, the US Attorney General would police the states. The US AG would file suit to repeal individual rights violating legislation and regulations at the state and local levels. An interesting question is if it is conceivable that the US AG would file suit against the federal government itself to force congress to repeal such legislation, and government agencies to roll back regulation. There is obviously a potential conflict of interest, but if the US AG were to be legally bound by a strict interpretation of the constitution and morally guided by the Declaration of Independence one could certainly make a case for such a role.

At the state level, the Attorney General’s office would probably defend the state against suits filed by the US AG. And perhaps, guided by the US Constitution and the Declaration of Independence, fill a similar role as the US AG of filing suit against its own employer, the state government, to change state legislation and regulations.

Over time, the measure of success of the AGs both at the federal and state level would be a shrinking office that has less and less to do. The office of the US Attorney General was a part-time position until 1870. Let’s strive to return it to that size both federally and stateside.

One of the plaintiffs in the Exxon Mobile case, Alex Epstein of the Center for Industrial Progress (CIP) and the author of The Moral Case for Fossil Fuels, wrote in Forbes:

“The government has no right to demand a single email of mine or Exxon’s unless it has evidence that we are committing fraud by concealing or fabricating evidence. In the case of the climate impact of CO2, this is impossible–because all the evidence about CO2 and climate is in the public domain, largely collected and disseminated by government agencies or government-funded educational institutions.” Responding to Mass. AG Healey’s request for information, Mr. Epstein succinctly and appropriately responded “F**k Off, Fascist”. No, four letter words will not win this or any war to reclaim our liberty. But used in the right context they express justified contempt for the enemy which is a powerful weapon in the psychological warfare of sowing seeds of doubt that has to accompany the moral, political and legal fight ahead.

For a summary of the ExxonMobil case, see Ari Armstrong’s article “Fossil Fuels Advocate Alex Epstein Denounces AG Subpoena” ‘F**k Off, Fascist“.

We have many legal experts among our readers. Are we on the right track in our assessment of the valid role of the US and State AG’s?

2 thoughts on “Attorney Generals Going Rogue: A Symptom of Government Running Amok

  1. dwlievert says:

    Epsteins’s succinct and appropriate reply should serve as, if not a rallying cry, a motivational sentiment. While not of the caliber of “let’s roll” heard emanating from aboard Flight 93 on September 11, 2001, nonetheless #FOF should be cited whenever the caliber of said fascists warrant it.


  2. Excellent idea and good analogy with “let’s roll”. Thanks!


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