Who Are the Expert Witnesses Hand Picked by Lamar Smith to Testify on #ExxonKnew Subpoenas?

Read time: 7 mins

In July, the chairman of the House Committee on Science, Space, & Technology, Rep. Lamar Smith, issued subpoenas to two state attorneys general who are currently investigating what ExxonMobil knew about climate science, when they knew it, and if the company misled investors. 

The attorneys general of New York and Massachusetts both refused to turn over any information or communications about their investigations. Each AG's office argued the Committee had no authority to issue such a request, calling the subpoenas a violation of states' rights under the 10th amendment.

In a response last month, Smith, a Republican from Texas, announced a hearing to “affirm” that his Committee did have the legal authority to issue such subpoenas. The legal issue the September 14 hearing will address is whether a Congressional committee has subpoena power over state attorneys general and non-profit advocacy organizations. The subpoena was called “an unprecedented effort to target ongoing state law enforcement 'investigations or potential prosecutions'” by Leslie Dubeck, an attorney in the Office of the New York State Attorney General.

Smith has called three legal experts to bolster his claim — two with direct ties to the same Exxon-funded groups who have pushed climate science denial and inaction to cut greenhouse gas emissions.

Why Would Republican Rep. Lamar Smith Put Aside Principles of Federalism to Protect Exxon?

According to Oil Change International's Dirty Energy Money database, Rep. Smith has taken $24,770 in campaign contributions from Exxon over his career, with $17,500 of that coming in the last five years.

All told, according to the Center for Responsive Politics' OpenSecret.org database, Rep. Smith has received $684,947 from the oil and gas industry since 1998 — making oil and gas his most generous industry contributor throughout his career.

On top of the subpoenas sent to the New York and Massachusetts attorneys general, Rep. Smith issued subpoenas to eight non-profit advocacy organizations, foundations and a private law firm that have drawn attention to what Exxon knew about climate science and when the company knew it.

The Union of Concerned Scientists, which received such a subpoena, offered to meet with the Committee but refused to turn over internal records. Their meeting request was refused.

“From the outset, Chairman Smith has overstepped his authority with this investigation,” said USC President Ken Kimmell. “He has consistently mischaracterized our work in repeated, convoluted attempts to justify his efforts. It is telling that after issuing broad, unilateral subpoenas, he is now holding a hearing to figure out if his actions are legitimate…We will continue to stand firm against this abuse of power and defend our First Amendment rights.”

“However Chairman Smith stacks this hearing with friendly witnesses, it's clear that he's on shaky legal ground,” Kimmell continued.

Who are Chairman Lamar Smith's Hand-Picked Witnesses?

So who are these “friendly witnesses”? All three are law professors. Two currently hold positions at major conservative think tanks that are known recipients of funding from the fossil fuel industry. The other, Jonathan Turley, is a respected law scholar and civil liberties expert with no potential conflicts of interest.

Ronald Rotunda

Ronald Rotunda is a law professor and the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University, and is a widely published expert on legal ethics.

In 2000, Rotunda was a visiting legal scholar at the Cato Institute, a think tank co-founded by oil and gas billionaire Charles Koch that is heavily funded by the Koch brothers.

Currently, Rotunda is a Policy Expert at the Heartland Institute, which describes itself as “the marketing arm of the free market movement,” but is most well known for its decades of climate change denial. A vocal critic of renewable energy and a cheerleader for fossil fuels, the Heartland Institute is notoriously secretive about its donors.

But many of the organization's largest known donors are fossil fuel industry companies and organizations with direct ties to the oil and gas industry.

Heartland has received at least $676,500 directly from Exxon since 1998, including $140,000 in grants that were earmarked for climate change work. It has received hundreds of thousands from various branches of the Koch brothers' donor networks, through family foundations and directly from Koch Industries. Heartland has also received more than $17.5 million in anonymous money through Donors Capital Fund and more than $600,000 from Donors Trust including numerous grants with climate related titles.

Donors Trust and Donors Capital Fund are dark money organizations that allow donors to give privately, and are known to receive millions from the Koch brothers' various entities.

Rotunda has recently criticized the state AGs for using their unquestionably legal subpoena power to request records from Exxon. Rotunda wrote for the Verdict blog and Heartland Institute's blog, “The marketplace of ideas, not the subpoena power of government, should decide what is true or false.” However, at the September 14 hearing, he is expected to argue for a Congressional subpoena power that critics argue is without precedent.

Elizabeth Price Foley

Elizabeth Price Foley is law professor at the Florida International University College of Law. Foley also serves on the Editorial Board of the Cato Institute's Supreme Court Review. The Cato Institute was co-founded by oil and gas billionaire Charles Koch, and also receives funding from various Koch affiliated organizations, including the David H. Koch Charitable Foundation.

Foley is also a Research Advisory Board member of the James Madison Institute for Public Policy. The James Madison Institute is funded in part by the Donors Capital Fund, a supporting affiliate of Donors Trust for donors of more than $1 million. The Donors funds are advertised as a way for very wealthy conservatives to remain hidden when “funding sensitive or controversial issues,” creating a lack of transparency and accountability.

Donors Trust and Donors Capital Fund have been exposed as a “dark money” channel for the Koch brothers to donate to fossil fuel-friendly front groups, through their Knowledge and Progress Fund.

Finally, Foley is listed as an “Expert” at the Federalist Society, an influential conservative group that has published numerous essays and articles claiming the lawsuits against ExxonMobil and related requests for records from denialist groups are a threat to free speech, a “chilling campaign to establish ‘consensus’ through intimidation”, a “witch hunt” and a “fishing expedition.”

In 2015, the Federalist Society received funding directly from ExxonMobil, and received nearly $1 million from Donors Capital Fund in 2010.

In short, Foley currently holds positions at three influential public policy groups funded by oil and gas interests, two of which receive funds directly from ExxonMobil.

Foley also is of counsel to the law firm BakerHostetler and she collaborates with a BakerHostetler partner, David Rivkin, on articles criticizing the Obama Administration.  Rivkin, also affiliated with Cato and the Federalist Society, is actively engaged in litigation and advocacy opposing efforts by the Administration to address climate change and toxic pollution. Rivkin is also known to DeSmog readers for his role in launching the Free Speech in Science Project to defend fossil fuel interests and the Competitive Enterprise Institute in the ongoing attorneys general investigations.

Full Committee Hearing Scheduled for Wednesday

The Democrats of the House Science Committee, led by ranking member Eddie Bernice Johnson, were allowed under committee convention to invite one expert witness. They selected Charles Tiefer, a professor of law at the University of Baltimore, and former Acting General Counsel for the U.S. House of Representatives.

Tiefer testified in 2014 that his 15 years litigating for the House has yielded him “more experience than anyone else” with regards to “what kinds of House roles in litigation do or do not get accepted by the courts as legitimate.”  Tiefer has bipartisan bonafides—having testified for Republican committee chairs Issa and Sensenbrenner, but has also published a book about the George W. Bush administration's subversion of law in pursuit of conservative causes. 

On Wednesday, September 14, all four expert witnesses will testify to the full committee at a 10am hearing. You can watch the hearing here.

A group of legal experts sent a letter to Rep. Smith today arguing that his subpoenas are “invalid and constitutionally impermissible” because they exceed Congressional authority and violate the separation of powers and the fundamental principles of federalism.

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