I've been unmotivated to post anything for the last little while because I could see the path the latest non-story in the "skeptic" blogosphere was going to take. Or at least, I thought I could. It turns out I was wrong. I thought the so-called "skeptics" would cherry-pick quotes, ignore inconvenient details and distort facts, but for some reason I just didn't expect them to fabricate wildly untrue accusations that don't even make sense. I know, naive, right?
This comes up because a commenter on the last thread about this non-story told me to look at Watts Up With That, "The world's most viewed site on global warming and climate change" to see a recent post about this topic. The two tiles of recent posts I saw which seemed relevant were:
I'm not going to go into the details and facts of the whole thing because that second headline is too much. I'll give a little bit of an overview so you can understand what I'm talking about though.
Some time back, a group of 20 university professors signed and sent a letter advocating for the use of a racketeering investigation and possibly prosecution of people who (supposedly) spread disinformation to mislead the public in order to prevent action needed to combat global warming. People filed requests under the Freedom of Information Act to obtain the e-mails these professors shared when coming up with the letter. One university, the George Mason University, said there were no relevant e-mails to share. People believed that was wrong and filed a lawsuit against the university. As a result, approximately 140 e-mails were released.
However, there were over a thousand other e-mails the courts have looked at as part of this lawsuit. Those e-mails might get released as well. A professors who wrote some of these e-mails, one Edward Maibach, doesn't want that to happen and has filed a couple motions to try to prevent it. One of those motions is a motion to intervene, a motion which would seek to allow him to get involved with the lawsuit directly rather than rely on his university to protect his interests.
This motion is intended to give him standing to get involved in the lawsuit. It is scheduled to be heard by the courts on May 31st, a week from now. Because it would be useless for him to get involved in the lawsuit if the e-mails get released before he can, Maibach has filed a second motion, a motion to stay any release of the e-mails until after his hearing has been dealt with.
To put it simply, Maibach is asking the courts to put things on pause until he can join in on the debate over whether or not his e-mails should be released (if the courts decide he should be allowed to). There's nothing remarkable about that. Yet, the one Watts Up With That article is titled:
BREAKING: #RICO20 Edward Maibach tries ’emergency stay’ to retroactively pull Shukla/George Mason University emails from view
While the other, slightly newer article directly states:
Earlier today, we saw that Ed Maibach himself hired an attorney to file an emergency stay of release of FOIA documents that George Mason University had planned to release, along with the retroactive removal of the previous tranche of GMU documents from last week
There is nothing in any motion calling for anyone to "retroactively pull" anything from anywhere. Such a motion would be foolish and wasteful since it would be practically impossible to do that given the files have been published online and shared across many sites and servers. Even if that weren't true though, Maibach couldn't have even filed a motion to have materials pulled down from anywhere since he lacks any legal standing to make such a motion.
The slightest understanding of the legal situation is enough to show this accusation now made twice by Anthony Watts is false, but even if one knew nothing about the topic, they could read the motions which Watts posted online and see what they call for. Like:
WHEREFORE, Intervenor-Respondent Edward Maibach respectfully requests that this Court stay GMU’s production of documents, pending application for a stay before the Virginia Supreme Court, and that the Court schedule a hearing, and grant such further and other relief as the Court deems necessary and proper.
It's noteworthy these Watts Up With That articles don't quote anything showing Maibach has moved to "retroactively pull" documents down from anywhere. Similarly, they don't say where the documents would be pulled down from. I have no idea where the idea came from, but anyone who spent any amount of time trying to verify this bizarre idea would find nothing to support it.
But I guess you can make any non-story seem sexy and important if your approach to reporting is, "Let's just make things up."
May 26th, 4PM Update: before I wrote this post, I tried commenting at Watts Up With That. For some reason my comment never appeared, not even with a note saying it was being held for moderation. I confirmed the comment was submitted by trying to re-submit it, at which point I was told my new attempt was a duplicate comment.
I don't know what caused that, but I decided I'd try e-mailing Anthony Watts directly to see if he had any response, offering to correct any errors he might see and append a response from him. I waited 24 hours without a response and then ran the post. I sent him a follow-up e-mail informing him of the post, and he has since responded. He asks I append two notes, one from him and one from the source he relied upon. However, I am a bit confused as he says to post his "initial response" which was:
I never saw any previous emails from you This is the first I've heard of it. Anthony
I'm guessing that's not what he had in mind. I imagine he meant for me to append something he wrote two e-mails later, where he said, "Please append this" and provided this note:
Thanks for your commentary. I made the headline based on the interpretation of a legal expert who emailed me with the information and attachments.
While I can’t give the entire email I can provide this part:
"The attached filings show that this morning [Maibach's attorney] rushed to Richmond seeking an emergency stay of the GMU production of everything -- what we already have, and what we do not yet have -- which we are owed today under court order. "
This is from the email sent to me by an attorney working on the GMU FOI case.
I'm not a legal expert, nor am I privy to internal working details of the case, so I believed this statement in the email sent to me When my expert source says "...emergency stay of the GMU production of everything -- what we already have..." That "what we already have" says "retroactive" to me.
I certainly didn't make anything up, I relied on advice from an attorney with inside knowledge of the case., and I defer to that person's statements over others who aren't attorneys and who aren't working on the case. The attorney that sent me the email has not asked for a correction related to the "retroactive" part.
Also, I've had no request for correction from anyone at GMU. In fact, there has been no complaint about that from anyone but you. That's not a slam, just a statement of what I observed this week.
It is possible the attorney misspoke the opinion to me, or maybe there is more to the story that neither of us is yet privy to. I would appreciate amending/correcting your own headline which accuses me of "making things up" when In fact I had a reference from an insider expert. If the reference from the attorney is wrong (and I'll ask) or somehow what he previewed and what was actually filed with the court (maybe somebody caught the retroactive part before final submission and removed it) I certainly have no problem amending or correcting mine.
This is the note from his source he asked me to append, updated to correct typos at his request prior to me writing this update:
That is in fact a reasonable reading of what Prof. Maibach's filing seeks, given not only the practical meaning of seeking to stay the order releasing the records -- including those produced in the litigation process, already in the public domain which would have to be clawed back -- but also just how ambiguous the filing was.
At the end of his motion, he says he seeks a stay, or reconsideration, or “some combination thereof” of the Court’s 22 April and 13 May 2016 orders ordering (and already resulting in partial) release: the orders that produced the documents, which he wants either stayed or nullified. Even without expressly claiming retroactivity, overturning those orders would have a retroactive effect, as your correspondent surely knows.
It will no doubt gratify the court that someone has found the hidden desires of this filing -- delay and an outlet for ad hominem being the only obvious objectives -- however unlikely that reading that Maibach doesn't actually want the records already in petitioners' possession returned. Otherwise one might conclude that the unclear prayer for relief doesn't actually mean what it implies as a practical matter.
As petitioners have pointed out, it's even less clear if the Court would have the authority to grant that relief, given it no longer has jurisdiction over the case, one of numerous problems which the author of Maibach's messy pleadings seems to understand: counsel chose to cite only unpublished, trial level opinions to support the ideas she raises, rather than binding precedent from the Supreme Court of Virginia...what with the published precedent making clear this court has no jurisdiction and the filing was therefore an inappropriate time-waster that counsel should have been aware of as a member of the Virginia bar.
In fact the pleadings are so deficient in so many, respects -- such as violating the Court's rules — that the petitioners are forced to seek sanctions against counsel, a rare move not undertaken lightly.
I prefer to let people's responses stand on their own as a matter of fairness, but I must point out this response is garbage. I might address this commentary in more detail later since its criticisms of legal filings are... annoying given the factual errors and distortions the CEI filings contain, but for now, I want to focus on the topic at hand.
A stay of release does not in any way require the retroactive removal of documents from public view. Ordering the withdrawal of documents which have been publicly disclosed is an serious step, one which would only be done with good cause. The judge in this case lifted a protective order preventing the disclosure of some e-mails. Once he did so and the e-mails were released, the damage was done. The damage could not be undone by demanding parties of the lawsuit take the documents off their websites if he later decided he was wrong to lift the protective order.
Moreover, no judge in the country would order the removal of documents like this based on a motion for a temporary stay of release. The legal filing in this case set a hopeful timeframe for the stay it requests of 1 week. Leaving the documents on one party's web server for all of one additional week when they've already been widely disseminated and discussed for weeks could not possibly cause a meaningful amount of harm.
There is much more which could be said, but as a matter of fairness, I will leave further discussion to comment threads and subsequent posts.