Let's Just Make Things Up

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:

CEI fires back at Ed Maibach over ’emergency stay’ of #RICO20 FOIA documents – looks like he’s toast

BREAKING: #RICO20 Edward Maibach tries ’emergency stay’ to retroactively pull Shukla/George Mason University emails from view

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.

9 comments

  1. Thanks for the clear description of what Edward Maibach is doing here. I wish the reporters on CNN, WaPo etc could write anywhere this clearly and accurately.

    This story will be interesting to watch as it goes through the court system (they may new legal precedents here regarding the private or public nature of emails sent from universities, so it could impact me personally).

    The part about the WUWT articles was quite an entertaining read…I got a couple of good chuckles from the general level of stupidity that pervades that blog these days.

  2. Carrick, thanks. I do think there could be some interesting effects if this lawsuit is carried out long enough. The GMU practice for handling FOI requests shouldn't be allowed (people being in charge of any search of their e-mails to find requested material, really?), and this lawsuit could create pressure to getting better approaches used. I don't expect a ruling anything like that directly on the issue, but there could be some precedent set and/or simply greater awareness created for what is needed by FOIA laws. Additionally, we could get clearer guidelines as to just what constitutes a public record which should be released under FOI requests.

    I doubt it will go that far though. I suspect things will get settled/dropped in one way or another before anything too substantial happens. I could be wrong though. Maybe Edward Maibach will be able to get enough support to prevent this action on his own. It will be interesting. Right now it's basically Maibach v. Competitive Enterprise Institute with the GMU caught in the middle. I have to imagine it creates an awkward situation for Maibach at his university since It wants to just acquiesce.

    Incidentally, I don't think there will be anything damning in those e-mails. I suspect Maibach is opposing this mostly because he perceives it as yet another attempt at harassment of scientists in the global warming debate. I'm not sure he's wrong. I mean, he's wrong about the requirements of the FOIA law. I'm just not sure he's wrong about the motivations of the people behind this. When you look at the sort of things being written at WUWT or by the CEI, it really doesn't seem there's any good reason for all this.

  3. Oh, and anybody who sees this comment should take a look at the update to this post. In e-mails, Anthony Watts defends what he wrote, citing a lawyer from CEI as the source for it. A lawyer from the CEI even wrote a response. It's not mentioned in the post, but his response was apparently endorsed by the lawyer heading up this lawsuit. I find that quite troubling. I think I'll leave it at that for now though.

  4. Brandon S "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."

    Personally, I think the issues you are raising are very minor. (Almost certainly the parties real concern is the potential release of additional documents.) Thus, I don't have time to closely read the legal documents. However, there is an explanation for Maibach requesting something similar to retroactive retrieval of the documents. First, here is language from Maibach's filing:

    "In the alternative. Dr. Maibach respectfully requests that the court reconsider its May 13, 2016 denial of a stay, its April 22, 2016 order denying protection of his emails under VFO1A, or some combination thereof. Virginia courts retain the discretion to reconsider prior decisions." I don't practice Virginia law, but based on general legal principles, here is a potential explanation for maybe the technical retrieval of the documents from CEI. (Not the general public)

    Under the law of res judicata, when parties litigate a matter and it is not appealed the law decided in the unappealed decision is binding on the parties irrespective of whether it is correct. On April 22 the court decided the documents requested by CEI were requested in the course of public business. Under traditional res judicata principles, if the April 22, decision stands then it would apply to other batches of emails. So, if Maibach wants to keep his additional emails private, it is very important to him to overturn the April 22 decision. Thus, however, he can he wants to undo (vacate) the previous decision. It is possible that in attempting to vacate the decision, as a technicality, Maibach has to request the return of the documents from CEI. (Am admittedly speculating here) Also, quite often, on appeal, there is a presumption that the trial court's decision is correct, which would be another reason that Maibach would want to undo the April 22 decision to the greatest extent possible.

    Bottom line is that there appear to be many subtleties to the case as it stands, and it is not unreasonable for Watts ( a lay person) to interpret Maibach's decison the way he did. I think you are going way too far by saying Watts is making things up.

    Also, from a legal standpoint (not so much general public interest), I think there is a decent chance that the emails now being sought would show unseemingly cooperation between the various AGs and the warmists seeking legal action. I also think there is a good chance that the emails would further document the abuse of process that seems to be taking place. It is highly unlikely that anyone pushing the nominal case for consumer fraud or business fraud has any true interest in those issues (real motivation is discovery of documents) and the emails could document that.

    JD

  5. Correction: This sentence: "Thus, however, he can he wants to undo (vacate) the previous decision."

    Should read: Thus, however, he wants to undo (vacate) the previous decision.

  6. JD Ohio, we are basically in agreement up to the point you write:

    Thus, however, he can he wants to undo (vacate) the previous decision. It is possible that in attempting to vacate the decision, as a technicality, Maibach has to request the return of the documents from CEI. (Am admittedly speculating here) Also, quite often, on appeal, there is a presumption that the trial court's decision is correct, which would be another reason that Maibach would want to undo the April 22 decision to the greatest extent possible.

    Requesting a stay of release of further e-mails, and even requesting a re-examination of the previous decision to release e-mails, would not require requesting previously disclosed information be withdrawn. I could discuss that more (as documents being incorrectly disclosed is a well-examined topic), but such would largely be pointless as this motion is for a temporary stay on a timeframe of approximately one week by a person who is not (as yet) a party to the lawsuitIt couldn't possibly hope to call for the withdrawl of previously documents. The issue of whether or not such a withdrawl would be requested (it wouldn't) wouldn't come up in a temporary stay like this. It would have to come up in a future motion for a more permanent stay. So while you say:

    Bottom line is that there appear to be many subtleties to the case as it stands, and it is not unreasonable for Watts ( a lay person) to interpret Maibach's decison the way he did. I think you are going way too far by saying Watts is making things up.

    You offer no basis for this claim. There is nothing in Edward Maibach's filing which supports Anthony Watts's portrayal. That it is conceivable this temporary motion could ultimately lead to Maibach requesting documents be withdrawn does not mean it is reasonable to say he has moved to have documents withdrawn from people's web servers. It certainly doesn't justify writing things like:

    What has already been made public due to the court dissolving the protective order is and will remain public, because the Internet never, ever, forgets.

    As though there was some immediate risk of action against a site like Watts Up With That people need to be worried files hosted on it might be taken down (and thus, have to find them somewhere else on the Internet). These sort of portrayals are not based in anything at all even if we could imagine some scenario where weeks down the line, after multiple courts hearings, Maibach did happen to make the request of the courts Watts claims already has been made.

    I'll note CEI has not made any reference to this idea in their legal filings responding to Maibach's despite discussing the supposed harms and costs his filing would have. That suggests this claim is too extreme even for them (and their filings have some rather... questionable representations of things). Nobody has said it in public except for Anthony Watts, and his only basis for his claim is a lawyer at CEI told him so. That is not okay. Journalism does not allow a person to report something as fact simply because one person happened to say it is true.

    Put simply, there isn't a single shred of evidence, fact or statement which supports Anthony Watts's portrayal. That is wrong. The only reason people will accept it is it is coming from Anthony Watts, not somebody on the "warmist" side.

  7. JD Ohio:

    Also, from a legal standpoint (not so much general public interest), I think there is a decent chance that the emails now being sought would show unseemingly cooperation between the various AGs and the warmists seeking legal action. I also think there is a good chance that the emails would further document the abuse of process that seems to be taking place. It is highly unlikely that anyone pushing the nominal case for consumer fraud or business fraud has any true interest in those issues (real motivation is discovery of documents) and the emails could document that.

    I hope you will forgive me for being so bold as to suggest this belief of yours is ultimately the real reason you think I was unfair to Anthony Watts. I think even you know your legal analysis does nothing to support his portrayal, and if you weren't so opposed to the people he support is in opposition to, you woudln't even try to defend what he said. Because what he said is ridiculous and unjustifiable.

    I think that's unfortunate. Failing to call people out when they make false claims is one of the worst effects of tribalism. Not only is it wrong on principle, it ensures weak and bad arguments will cloud the "cause" for which they are offered. Any lawyer familiar with the facts of this situation who reads the CEI filings should be embarrassed at the many issues they contain. The filings contain obvious factual misstatements, distortions of quotations and perhaps most troubling, glaring typos. I know I shouldn't worry much about typos, but come on. One document of maybe 10 pages with half a dozen typos? Good lord. I get spellchecking software doesn't get the difference between things like "fist" and "first," but... come on guys.

    Anyway, the point here is as wrong as Edward Maibach may be about various things, CEI is not some angel which can do no wrong. If people were interested in fair or accurate reporting, things would be very different. What we have right now is basically just simple activism masquerading as reporting.

  8. TW, I actually plan on writing a bit in a new blog post once people have had time to read the released e-mails. I think it'll be interesting to see how people react to them given there is nothing remotely damning in these e-mails.

    In the meantime, I'll point out a the motion wasn't quashed, it was denied. There's a difference. Additionally, neither the courts nor any CEI filings said anything like Anthony Watts claimed about Edward Maibach's motion, that it would require a retroactive removal of anything from any servers. Nothing about this post is changed by the release of these e-mails, and if anyone had asked me if I thought they would be released, I'd have said they would. (In fact, I have said Maibach is wrong about FOI law multiple times.)

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