Washington, May 26 – In a letter sent to Attorney General Loretta Lynch today, Sens. Sheldon Whitehouse (D-R.I.), Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.) and Jeff Merkley (D-Ore.) slammed a GOP effort to cut off any federal investigation into possible fossil fuel industry fraud.  Recalling the successful Department of Justice lawsuit against the tobacco industry during the Clinton and Bush administrations, the Senators write that such an effort “reprises the tobacco lawsuit’s own early history of efforts from Congress to discourage or interfere with that lawsuit in order to protect the tobacco industry.”  They also note how such an effort could serve as “Exhibit A among the reasons why the Department of Justice should take a full and honest look” at the fossil fuel industry’s climate denial efforts.

Whitehouse, Sanders, Warren, and Merkley were responding to a letter sent to the Attorney General earlier in the day by Sens. Mike Lee (R-Utah), Ted Cruz (R-Texas), Jeff Sessions (R-Ala.), David Vitter (R-La.) and David Perdue (R-Ga.), in which the Republicans attempt to cast any investigation or inquiry involving climate change as an infringement upon First Amendment freedom of speech.  In reply, Whitehouse, Sanders, Warren, and Merkley write that it is “settled law that fraud is not protected by the First Amendment” and “whether what the fossil fuel industry is up to is ‘core political speech’ or whether it is downright fraud is precisely the question which the investigation should answer.”  They add that “it is noteworthy how public reporting shows the fossil fuel industry to be a dominant funder – if not the dominant funder – of the Republican Party.   The Republican Senators’ letter comes to you laden with that conflict of interest.” 

The text of the Whitehouse-Sanders-Warren-Merkley letter follows.

Dear Attorney General Lynch,

We write today to urge that you view the Republican Senators’ May 25 letter as Exhibit A among the reasons why the Department of Justice should take a full and honest look at possible fraud in the fossil fuel industry’s climate denial operation. 

The template for the Department investigating this question, of course, is the Department’s own victory in its civil RICO lawsuit against the tobacco industry.  The Republican Senators’ letter reprises the tobacco lawsuit’s own early history of efforts from Congress to discourage or interfere with that lawsuit in order to protect the tobacco industry.   

The Republican Senators’ letter also reprises arguments made in the press against bringing the tobacco lawsuit, and made in court against that lawsuit: to wit, that the First Amendment should prevent the investigation or determine the litigation.   This argument was soundly rejected by the Department, and then by Judge Kessler, and then by the United States D.C. Circuit Court of Appeals.  It has always been and remains good law that fraud is not protected by the First Amendment.   It would be a sorry world in which corporations engaged in fraud could pull the screen of the First Amendment over any investigation of their fraud.

The Republican Senators’ letter ignores the considerable academic and journalistic research into the fossil fuel industry climate denial operation.  Over and over, the researchers on their own advert to the similarity between the tobacco industry’s fraudulent conduct and the fossil fuel industry’s conduct which they are investigating.  This is predication, at least, for the Department to take its own hard and fearless look.   

It is perhaps noteworthy in evaluating the merits of the Republican Senators’ letter that their concern over investigations in this arena only appears when the subject is the fossil fuel industry.   When the Attorney General of Virginia harassed a UVA climate scientist (to the point where the University went to the Virginia Supreme Court, which stopped the abuse), or when a Republican Senator called for criminal investigation of scientists in the so-called “ClimateGate Scandal” (which after six thorough investigations proved to be no scandal at all), or when Republican committee chairmen relentlessly pursue climate scientists with government subpoenas, there has not been a peep of objection from them.

There has been an outburst of editorial opinion against investigation that has significant earmarks of orchestration:  the posts and editorials almost all confuse criminal and civil investigation; they almost all fail even to mention the tobacco lawsuit; they all have only one or two degrees of separation from the fossil fuel industry and its climate denial outlets; and they refuse to acknowledge the settled law that fraud is not protected by the First Amendment.   The Republican Senators’ letter has all those same earmarks. 

Finally, it is noteworthy how public reporting shows the fossil fuel industry to be a dominant funder — if not the dominant funder — of the Republican Party.   The Republican Senators’ letter comes to you laden with that conflict of interest.   

The question whether what the fossil fuel industry is up to is “core political speech” or whether it is downright fraud is precisely the question which the investigation should answer.   To say at the outset that it is entirely the former is premature, at best; if there is fraud, that fraud merits thorough and fair investigation.  

Sincerely,

Senator Sheldon Whitehouse                                      Senator Bernie Sanders

Senator Elizabeth Warren                                                       Senator Jeff Merkley