18 U.S.C. 1343

Andrew Lacis of GISS has an extraordinary comment at Judy Curry’s that prompted today’s post. Lacis classified Gleick’s conduct as merely a “political prank”. Unfortunately for Gleick, the issue is not what Lacis thinks, but whether his admitted acts (leaving the fake memo aside for now) meet all the elements of 18 USC 1343 (wire fraud), a serious federal offence. Given Gleick’s admissions, the only legal point that even requires analysis is whether his actions deprived Heartland of “property” under binding interpretations of 18 USC 1343. There is a case decided by the U.S. Supreme Court that is exactly on point to this question: it held that confidentiality and exclusive use of business information were a form of property rights, the deprivation of which using false pretences was an offence under 18 USC 1343. This decision is binding on lower courts. All the elements of 18 USC 1343 appear to met under admitted facts.


Lacis

Before considering actual U.S. codes and cases, let me start with Lacis’ comment at Judy Curry’s as it is representative of one line of talking points that are being tried out by the “community”. Lacis started as follows:

From all the foregoing, as I see it, Peter Gleick was simply being inept in his deception (i.e., he got caught doing it). And, there was some poor secretary at the Heartland Institute who was being gullible and naïve (I hope she still has her job).

I think that reasonable people can agree that Gleick was “inept in his deception” (see my post on America’s Dumbest Criminals), though I do not agree with Lacis that the problem was only that he “got caught”.

Lacis then argued that Gleick’s conduct fell within the scope of “dirty-pool politics” and was subject to cultural relativism, with the only real drawback being an “appearance of hypocrisy”:

All of this falls in the category of dirty-pool politics that has a long established tradition dating back to the early days of recorded time. After all, deception, ethics, and morality are all relative, depending on one’s culture, circumstances, and purpose at hand.

It is only when one is preaching for some emphatic course of action, and then gets caught doing something that is to the contrary. This creates that undesirable circumstance and appearance of hypocrisy. Take for example all those not-so-infrequent cases where politicians and televangelists have stridently preached ‘family values’, and then got caught doing the wrong thing at the wrong address. Blatant hypocrisy is the inevitable result.

While there is undoubtedly some cultural relativism in attitudes towards deception, Gleick’s conduct took place in the United States in 2012 and is subject to U.S. federal legislation. Gleick’s conduct might have been condoned in other societies at other times, but this would not be relevant to a judge’s determination of whether or not he committed an offence under 18 USC 1343. Nevertheless, as Lacis observed, the fact that Gleick has preached the importance of scientific integrity for many years and was the Chair of the AGU Committee on Scientific Integrity adds a salaciousness to his hypocrisy.

Lacis then proceeded into a bizarre taxonomy of deceit:

The art of deception is a very common strategy, as in sports and war. Deception is to be found in the tool-bag of every investigative reporter and police detective. We’ve got your fingerprints (somewhere on file), so you might as well tell us why you did it. In poker, it is called bluffing, which is not considered being dishonest. But then, people also do have a sense of fair play – so there is some gray area beyond which heavy handed deception becomes viewed as unsportsmanlike conduct. This is to be differentiated from all those activities that are explicitly illegal, such as breaking into Watergate, hacking into Sara Palin’s e-mails, or the hacking and posting CRU e-mails. But duping Sara Palin into thinking that she is getting a call from the president of France, or duping Governor Walker of Wisconsin into thinking that he is having a private chat with his funding benefactor David Koch – those would seem to fall in the category of political pranks, producing a laugh, and perhaps some degree of embarrassment.

Lacis’ taxonomy made no reference to criminal legislation or case precedents. Over the years, U.S. legislators and judges, like legislators and judges elsewhere, have taken considerable care in the classification of various forms of deception, distinguishing many forms of conduct beyond mere “unsportsmanlike conduct”. As Lacis observed, bluffing in poker is legal. However, wire fraud (18 USC 1343) isn’t.

Was Gleick’s conduct merely a “political prank” (as Lacis argues) or was it more serious? Did Gleick’s actions meet the elements of 18 USC 1343 or any other offences?

18 U.S.C. 1343
18 USC 1343 is not an exotic part of the criminal code, but an offence that is frequently charged and with extensive case law. (Google “wire fraud” for dozens of cases and incidents). The code itself reads as follows:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both….

Gleick has already confessed that he impersonated a Heartland director; that, using that identity, he obtained confidential financial information from Heartland, including their donors’ list and records of their contributions; and that he disseminated that confidential information with the intention of making it public and that the information did become public. There is ample evidence that Gleick’s intent in making the information public was to damage Heartland by placing them in breach of their undertaking of confidentiality to their donors and to cause donors to withdraw from funding Heartland (as appears to have already happened with one donor.)

These points are established quite separately from the further question of whether Gleick forged the Confidential Strategy memo (as many people, including Mosher and me, believe) and potential offences arising from that action.

Inexperienced commentators might well argue at this point: Gleick didn’t actually remove Heartland’s list of donors or financial records; therefore, he didn’t deprive them of any property; ergo, no offence. Unfortunately for Gleick, it isn’t as simple as that.

Carpenter v U.S.
In Carpenter v. United States 484 U.S. 19, 27 (1987), the U.S. Supreme Court directly and clearly stated that an organization’s right to confidential and exclusive use of business information is a “property” right within 18 USC 1343. Interested readers should read the decision in its entirety as it’s not long and contains many observations that bear directly on Gleick’s situation. I quote extensively from this decision below.

Defendant Winans was a reporter with the Wall St Journal who was charged with wire fraud (18 USC 1343) and several other offences. He had leaked the contents of financial columns to traders prior to publication. Winans argued that wire fraud was not engaged because the Wall St Journal did not itself lose any money or property. The Supreme Court found against him, summarizing their decision as follows:

2. Petitioners’ conspiracy to trade on the Journal’s confidential information is within the reach of the mail and wire fraud statutes. Pp. 25-28.

(a) The Journal had a “property” right in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of Winans’ columns which right is protected by the statutes…

(b) Petitioners’ activities constituted a scheme to defraud the Journal within the meaning of the statutes. It is irrelevant that petitioners might not have interfered with the Journal’s use of its confidential information, publicized the information, deprived the Journal of the first public use of the information, or caused the Journal [484 U.S. 19, 20] monetary loss, it being sufficient that the Journal has been deprived of its important right to exclusive use of the information prior to disclosing it to the public. The argument that Winans’ conduct merely violated workplace rules and did not amount to proscribed fraudulent activity is untenable, since 1341 and 1343 reach any scheme to deprive another of property by means of fraud, including the fraudulent appropriation to one’s own use of property entrusted to one’s care by another… Pp. 27-28.

In the running text, the argument is discussed as follows:

Petitioners assert that their activities were not a scheme to defraud the Journal within the meaning of the mail and wire fraud statutes; and that in any event, they did not obtain any “money or property” from the Journal, which is a necessary element of the crime under our decision last Term in McNally v. United States, 483 U.S. 350 (1987).We are unpersuaded by either submission and address the latter first…

Here, the object of the scheme was to take the Journal’s confidential business information – the publication schedule and contents of the “Heard” column – and its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes.

Both courts below expressly referred to the Journal’s interest in the confidentiality of the contents and timing of the “Heard” column as a property right, 791 F.2d, at 1034-1035; 612 F. Supp., at 846, and we agree with that conclusion. [484 U.S. 19, 26] Confidential business information has long been recognized as property. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 -1004 (1984); Dirks v. SEC, 463 U.S. 646, 653 , n. 10 (1983); Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U.S. 236, 250 -251 (1905); cf. 5 U.S.C. 552(b)(4). “Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy.” 3W. Fletcher, Cyclopedia of Law of Private Corporations 857.1, p. 260 (rev. ed. 1986) (footnote omitted). The Journal had a property right in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of the “Heard” column.

Petitioners’ arguments that they did not interfere with the Journal’s use of the information or did not publicize it and deprive the Journal of the first public use of it, see Reply Brief for Petitioners 6, miss the point. The confidential information was generated from the business, and the business had a right to decide how to use it prior to disclosing it to the public. Petitioners cannot successfully contend based on Associated Press that a scheme to defraud requires a monetary loss, such as giving the information to a competitor; it is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important aspect [484 U.S. 19, 27] of confidential business information and most private property for that matter.

We cannot accept petitioners’ further argument that Winans’ conduct in revealing prepublication information was no more than a violation of workplace rules and did not amount to fraudulent activity that is proscribed by the mail fraud statute. Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words “to defraud” in the mail fraud statute have the “common understanding” of “`wronging one in his property rights by dishonest methods or schemes,’ and `usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.'” 483 U.S., at 358 (quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924)).


Gleick and Heartland

Heartland’s list of donors and financial records of their contributions were Heartland’s confidential information. Applying Carpenter, Heartland’s right to exclusive use of this confidential information was a form of property, of which Heartland was deprived through false pretences. Based on Gleick’s admissions, it seems evident to me that all the elements of an offence under 18 USC 1343 have met. It is not necessary that Gleick himself profited from his actions; it is enough that Gleick intended to harm Heartland.

Wire fraud (18 USC 1343) and the closely related mail fraud (18 USC 1341) are workhouse U.S. federal crime clauses (google “wire fraud” for dozens of cases). Prosecutions are not restricted to the financial elite: a woman from Chokio here; a policeman from Fort Lauderdale; an $80,000 fraud from Westport. Whether Gleick, a member of the U.S. intellectual elite and a former student and coauthor of John Holdren, Obama’s Science Adviser, is ever charged is a different issue than whether his acts meet the elements of 18 USC 1343.

Returning to Lacis, Lacis’s final comment at Judy Curry’s was that:

Peter [Gleick] would have been smarter to get somebody else do his “hammering” of Heartland for him.

Doubtless he would have been less likely to get caught if the offence had been carried out by a more competent criminal. But better advice for the climate community would be that it obey the law.


256 Comments

  1. Posted Feb 28, 2012 at 6:22 PM | Permalink

    ‘Banged to rights’ as we say in the UK.

  2. manicbeancounter
    Posted Feb 28, 2012 at 6:25 PM | Permalink

    An incisive commentary, as always.
    There is also the issue of credibility. The climate community are backing Dr Gleick on the moral issue of whether it is right to to deceive and exaggerate in the furtherance of one’s objectives. This seems to be mostly in affirmative. Which poses some very interesting issues of trust in scientists and the fruits of their labours.

    • Vorlath
      Posted Feb 28, 2012 at 6:34 PM | Permalink

      I think this is why Gleick’s actions and those that support him will be far more important than Climategate. This shows a consistent pattern of behaviour where proper procedures are not necessary and exaggeration of findings are commonplace and encouraged at all costs.

  3. Steve E
    Posted Feb 28, 2012 at 6:52 PM | Permalink

    If this was a trial balloon by “the community,” it has gone over like a lead zeppelin.

    • Uncle Pinky
      Posted Feb 29, 2012 at 6:32 PM | Permalink

      But “the community” will stop up their ears like a deaf leopard.

  4. Posted Feb 28, 2012 at 6:59 PM | Permalink

    That’s going to leave a mark!

  5. JRR Canada
    Posted Feb 28, 2012 at 7:00 PM | Permalink

    Great work as always Mr McIntyre,is there a connection between a modern acedemic education and the propensity for defending the indefensible?

  6. Posted Feb 28, 2012 at 7:05 PM | Permalink

    How is your analysis changed by the fact that FBI PR guy Ross Rice has said there does not appear to be a federal violation and there is not anything like an “investigation” happening?

    • Posted Feb 28, 2012 at 7:11 PM | Permalink

      Specifically:

      An FBI spokesman says that the bureau’s discussions with the Heartland Institute over the theft of stolen climate documents remain in a very early stage, but the spokesman stressed it cannot be called an investigation. “We cannot conduct a criminal investigation unless there is a clear allegation that a federal criminal statute has been violated,” Ross Rice, an FBI agent and spokesman from the Chicago field office, said via email. “Based on what we know so far, there is no evidence that has occurred.”

      • Posted Feb 28, 2012 at 7:25 PM | Permalink

        How is your analysis changed by the fact that FBI PR guy Ross Rice has said there does not appear to be a federal violation and there is not anything like an “investigation” happening?

        Steve explicitly said:

        Whether Gleick, a member of the U.S. intellectual elite and a former student and coauthor of John Holdren, Obama’s Science Adviser, is ever charged is a different issue than whether his acts meet the elements of 18 USC 1343.

        So I don’t suppose it changes it all.

        • Kevin
          Posted Feb 29, 2012 at 12:34 PM | Permalink

          The FBI complaint file is the biggest. Tons of complaints sit in this file until more evidence presents itself. The other thing to consider is the US Attorney guidelines which are different for each district and set by that districts USA (US Attorney). Usually these are based on monetary damages or other damages.

          As an example, in the state of Mass, an alleged criminal would have to steal $100,000 from a bank before the US Attorney will attempt to prosecute. If the criminal is a bank employee, the threshold is $50,000. These threshold guidelines are set by the USA for that district.

          So the point is that even if a crime has been committed, the Bureau (Feds) might not do anything because the damages do not meet the USA prosecution guideline thresholds. So the complaints will sit in a file until the alleged criminal racks up $100,000 in damages. However, these USA guidelines don’t stop the bank or local authorities from trying to prosecute.

          The Bureau has too much to do and they are a political organization. They are part of the Executive Branch of government and do the President’s bidding. If there is little damage or if there are not real political points to score, taking this to the Bureau is worthless.

        • theduke
          Posted Feb 29, 2012 at 1:09 PM | Permalink

          I think you might be missing one potential factor here. A prosecution of Gleick for a federal offense will be a very high profile case, one that will be all over every kind of news medium. Prosecutors love those kind of cases because it puts them in the national limelight. I’m convinced that one of the reasons that Eric Holder was so eager to try Khalid Sheikh Mohammad in New York City was because his prosecutors saw it as a ticket to lifelong fame and notoriety. That said, KSM doesn’t have the support of segments of the American public that Gleick has and a heavy-handed prosecution of Gleick could backfire.

          There is another possibility here that could drag this thing out for a very long time: if there is a new administration ten months from now. A new Republican AG might have a very different take on whether Gleick should be prosecuted. I’ve pointed out that John Kerry’s legislative coordinator is a member of the PI’s advisory board, which suggests she helps funnel federal money to them. Gleick presently has powerful friends in high places, but that could change with an Obama defeat. Given that Kerry has been a vocal proponent of AGW theory for a very long time, it wouldn’t surprise me to learn he’s already been on the phone to both Obama and Holder over this scandal.

      • Posted Feb 28, 2012 at 7:34 PM | Permalink

        You would think it would stick in your craw
        That the boys in Chicago, pro-green
        With their boss, the new Holder of law
        Are the ones who are calling Gleick clean

        They don’t talk of their cases entrained
        For disclosure might bring them a-cropper
        Here the answer’s already obtained:
        They just need to choose evidence proper

        You can do your own thinking on this
        For in front of your eyes is the book:
        In what way does the post above miss?
        Cite the point that lets Gleick off the hook

        What exactly distinguishes Gleick
        From the “fraud to obtain” as declared?
        Though it’s in legalese, it’s not thick
        Give it your full-on thought, nothing spared

        ===|==============/ Keith DeHavelle

      • Tom Ganley
        Posted Feb 28, 2012 at 7:44 PM | Permalink

        This sentence by Steve at the end may have something to do with agent Rice’s statement;

        “Whether Gleick, a member of the U.S. intellectual elite and a former student and coauthor of John Holdren, Obama’s Science Adviser, is ever charged is a different issue than whether his acts meet the elements of 18 USC 1343.”

        This is a high profile case, in an election year, with a connection to someone close to the President of the United States. No FBI agent or any other gov’t employee, is going to say anything one way or the other until it’s cleared upstairs. No one that wants to stay an employee anyway.

        If I had to bet I’d go about 3 to 1 that he’s never indicted by the Fed.

        Thanks for the post bigcitylib, I’ve been trying to find some offical statement. Do you have a link to the article?

      • bmcburney
        Posted Feb 29, 2012 at 6:17 PM | Permalink

        I think it is interesting that BigCityLib’s response is, once again, a direct appeal to authority. The post was a waste of time because some PR guy from the FBI has a different opinion (assuming he does have a different opinion). Don’t even think about having any opinion of your own on the subject unless you are also a PR guy for the FBI.

        Team members have credentials which automatically prove anything they might choose to say about climate. There is no need for Penn State to investigate whether Michael Mann acted improperly because if he had acted improperly he would not be an important figure in the scientific community and get lots of grant money. Therefore, proving Mann is important and gets grant money is the same thing as proving he has done nothing wrong.

    • Steve McIntyre
      Posted Feb 28, 2012 at 7:20 PM | Permalink

      Doesn’t change my analysis at all: if you think that it is incorrect on any point, please let me know.

      I don’t know what information or analysis Rice carried out when he made the statement that you cite.

      • Posted Feb 28, 2012 at 7:41 PM | Permalink

        RDrake,

        Ross said there doesn’t appear to be a case, not that there was a case and Gleick wouldn’t get charged. Bit different. Since that is the case, MC’s post appears to be a waste of everyone’s time.

        • Posted Feb 28, 2012 at 7:45 PM | Permalink

          “MC’s post appears to be a waste of everyone’s time”

          Yet you are all over it.

          Stuff like this doesn’t always move fast and it is rarely all public before the poo meets the fan.

        • Stephen Parrish
          Posted Feb 28, 2012 at 8:32 PM | Permalink

          Per the usual. Google BCL and the Shagged Sheep. Pop a cold one and enjoy…

        • TerryS
          Posted Feb 29, 2012 at 10:01 AM | Permalink

          Ross actually said:

          Additionally, based on the news accounts of the incident that I have seen, it would appear that the documents in question were given to third parties directly by Heartland employees. There was no computer intrusion which would be a violation of federal law under our jurisdiction.

          The 2 things of note are that he based his opinion on news reports and he never considered wire fraud.

    • robin
      Posted Feb 28, 2012 at 7:59 PM | Permalink

      It appears there is now an investigation, though I couldn’t find the confirming link alluded to at politico:

      “We are currently working with the institute and the U.S. Attorney’s office in Chicago to determine if the incident in question was a possible violation of criminal law…”

      Assuming that quote is valid, they would be doing the same as above. Barring something missed there, they would come to the same conclusions.

      http://junkscience.com/2012/02/25/fbi-now-on-the-case-in-deniergate/

    • mpaul
      Posted Feb 28, 2012 at 10:34 PM | Permalink

      Generally speaking, a Federal Grand Jury Indictment is required to charge a Federal Felony. Typically a US Attorney will bring a matter before the Grand Jury and an agency like the FBI will present evidence that could be used to bring an indictment. Its relatively unimportant what a FBI PR guy thinks. If a US Attorney decides that he/she wants to peruse the case, then the FBI will investigate it.

      • Posted Feb 29, 2012 at 5:59 AM | Permalink

        Yup.

        And that US Attorney reports up a chain to Holder. And can be removed.

        No way this will be pursued without approval in Washington.

    • Louparte
      Posted Feb 29, 2012 at 7:19 PM | Permalink

      In my opinion, (I’m a lawyer w/federal criminal defense experience in wire fraud cases), a US Attorney would not bring charges on this. An important reason would be that federal jury verdicts must be unanimous. All jurors must agree to convict. That would be a very tall order for a prosecutor in Gleick’s case. Another reason would be that Gleick had no intent for pecuniary gain.

      I agree that the offense fits into the language of 1343. But even if you disregard the intent issue, it would be nearly impossible to find a jury that would unanimously convict Gleick on a polarizing issue like this.

      It looks like a rock solid ciivil case though. Law suits don’t depend on prosecutorial discretion.

      Sue the jerk from all directions. Take him for all he’s worth. Make him squirm in a deposition. Make the board members of organizations he was affiliated with squirm. That’s doable. Getting a federal prosecutor to indict will be a lot more difficult.

  7. TedK
    Posted Feb 28, 2012 at 7:13 PM | Permalink

    “I think that reasonable people can agree that Gleick was “inept in his deception””

    Well, maybe in his publishing the stolen goods Gleick was inept. He showed a good deal of insight, skill and patience when he stole the documents.

    I fail to see this as a prank of any sort when the resulting publication resulted not only in a blitz of alarmist squawkings on many front pages and tens of thousands of the bemused citizens thinking the worst of Heartland and WUWT; but also in the NGO’s efforts to hound the identified donors.

    Throw the book at him and his little co-conspirators/libelers.

    • Posted Feb 28, 2012 at 7:24 PM | Permalink

      You’re not arguing with me. You’re arguing with an FBI agent re Federal law. You’re saying you know more about it than he does. I find that one hard to believe.

      Steve: please do not fabricate statements. I;m not “arguing” with Rice who, to my knowledge, has not read this particular post or formed an opinion on the points raised in it.

      There are issues worth discussing. However, please do not descend into fabrications.

      • TerryMN
        Posted Feb 28, 2012 at 7:33 PM | Permalink

        You’re arguing with an FBI agent re Federal law.

        Two separate people performing separate analyses does not constitute arguing with one another.

        You’re saying you know more about it than he does.

        Where? Who said they “know more about it” than the person you just injected into the conversation?

        • Posted Feb 28, 2012 at 7:45 PM | Permalink

          Steve, don’t be silly. What I’m saying is all this crap you’ve written is refuted by agent Rice. Lets just put it that way. I hope you didn’t put to much time into this post. Or I hope you can prove you’re a more reliable guide to the law than a real Federal cop.

        • TerryMN
          Posted Feb 28, 2012 at 8:02 PM | Permalink

          Ross Rice, with a BA in Business Administration from Lewis University, is an FBI Spokesman.

          >Are you sure you want to keep maintaining that one of their Public Affairs Directors is a real Federal cop bcl?

          >Next – where did Steve compare his reliability to Ross’?

          >Last – when (date) was the quote given to politico?

        • Paul
          Posted Feb 28, 2012 at 9:23 PM | Permalink

          BCL, as usual, you’ve wandered far from the path. On the other hand, since I actually am a Federal officer, I find Steve’s post interesting. Now, here’s a heads up for you – it doesn’t matter what Rice thinks or how much “law” he knows or doesn’t know. It will depend on what the US attorney’s office thinks, and how much the presiding judge knows or thinks about the law. USSC decisions add a nice touch to the deliberations.

          snip – no need to be rude to my fellow downtown Torontonian

        • Phil R
          Posted Feb 28, 2012 at 10:38 PM | Permalink

          snip – please do not discuss this in terms of political administrations

        • Pat Frank
          Posted Feb 28, 2012 at 10:15 PM | Permalink

          BCL, your argument from authority relies implicately on agent Rice having infallible judgment on the extent of the law. You are offering revelation, secular cynic style. Agent Rice is not infallible in these matters, and Steve’s rendition of case law is virtually a prima facie demonstration of legal relevance.

          Like that of Lacis as quoted here, your argument is constructed to cloud the obvious.

        • Hoi Polloi
          Posted Feb 29, 2012 at 5:23 AM | Permalink

          Well BigLip, do you really think Gleick will get away with this? We’re only at the beginning of a legal proceedure which may take quite some time. Don’t put your hopes too muchy on one FBI agent.

        • Duke C.
          Posted Feb 29, 2012 at 11:29 AM | Permalink

          Agent Rice is the media coordinator for the Chicago office. Not the special agent in charge who would make that decision.

          Further, the US Attorney’s office would play a large role.

          http://www.justice.gov/usao/iln/index.html

          And since our current President has deep ties in Chicago, we can imagine how far THAT will go…

        • Posted Feb 29, 2012 at 11:40 AM | Permalink

          I would appreciate it if commenters refrained from premature speculation that leads into politics rather than legal issues.

          I believe that’s what Steve said. I only expect the final sentence to go. But it’s also to assume the worst, whatever your view of the politics. The rule of law is a precious thing, a protector of the weak against the strong. Don’t assume anything but work with a good heart to uphold it. (This may also be snipped. No problem.)

        • Bill
          Posted Feb 29, 2012 at 12:17 PM | Permalink

          But then again, it is an election year. So maybe it would not be wise to try to hush something up. It will be interesting to see where this goes.

          It has already been instructive to see the tiny amounts of coverage it gets in the non-web media and how it is spun, often using talking points from the fake memo.

      • P. Solar
        Posted Feb 28, 2012 at 7:38 PM | Permalink

        Steve is not “arguing” with anyone. He is just stating fact. Well researched fact, it seems.

        The FBI’s PR man I hardly going to say “there is clear evidence of criminal activity but we’ve been told to lay off him” , is he?

        That they don’t intend to act seems at this stage to be self evident.

        Whether they are able to continue ignoring such a apparently clear case of wire fraud with a public confession remains to be seen.

      • John Vetterling
        Posted Feb 28, 2012 at 7:40 PM | Permalink

        That was on 2/16, before Gleick confessed. According to Politico, the FBI is now investigating this as a crime.

  8. Posted Feb 28, 2012 at 7:18 PM | Permalink

    BigCityLib… Link please. I’m not finding anything one way or the other.

    • Posted Feb 28, 2012 at 7:27 PM | Permalink

      Its below. Scroll down through page. I should say that Agent Rice has been quite forthcoming on this topic. I’ve emailed him a few times myself. And, again, if Steve MC thinks he’s smarter than the FBI, then go crazy. Otherwise I would just quietly disappear this thread.

      http://dyn.politico.com/members/forums/thread.cfm?catid=22&subcatid=76&threadid=6467393


      Steve: again, I am presenting my analysis. If, as you say, the FBI has not investigated the matter, then it’s premature to conclude that they have reached a final conclusion on the matter. And, as I said in my concluding remarks, whether the CHicago office undertakes a prosecution or investigation is a different issue from whether Gleick’s admitted conduct meets the elements of the offence – a point that you have not challenged.

      • tomdesabla
        Posted Feb 28, 2012 at 11:28 PM | Permalink

        Steve figured out climate science pretty well. I wouldn’t be rushing to lay down a bet against his legal analysis if I were you.

    • Posted Feb 28, 2012 at 7:35 PM | Permalink

      The only link I find so far is at the politico (I won’t join to read there !!!)

      “Based on what we know so far, there is no evidence that has occurred.”

      Well DUH!!!!
      One won’t know until one looks.

      • CoRev
        Posted Feb 28, 2012 at 7:44 PM | Permalink

        MathewW, Bigcitylib, is quoting information that was released before Gleick confessed, and presumably before Heartland got serious about filing charges.

        Just another diversion.

        • Posted Feb 28, 2012 at 7:54 PM | Permalink

          Nope the date on Rice’s latest comments is from this week. As I say, he responds to emails within about 24 hours. I contancted him last week when he was saying HI hadn’t approached the FBI. Now he has saying he has. – snip -

  9. Posted Feb 28, 2012 at 7:19 PM | Permalink

    Lacis is part of the new breed of “Gleickophants”

    What wouldn’t these people do for “THE CAUSE”??

    • Posted Feb 28, 2012 at 7:28 PM | Permalink

      But until today they didn’t know what to say. They’ve received instructions it seems. But seeking to subvert the law of the United States is a high risk strategy.

      • BillC
        Posted Feb 28, 2012 at 9:14 PM | Permalink

        This is confusing to us dummies. You (Richard Drake) and Mosher seem to think there has been some sort of “instruction”. This is triggered by what – Lacis’ comment on Climate Etc., two which Mosher replies several comments down “Damage control? A wide door has just been opened. He has no idea. They have not got their messaging clear yet.” and further down (but earlier). “In any case watch this space. You have just stepped into something. And you don’t even know it.

        Cryptic much? All I see here is the obvious, discussed here & elsewhere by quite a few commenters for a while, that people including Lacis who don’t think this was a crime, are wrong, for reasons laid bare in the current post.

        What the hell else??

        • Posted Feb 29, 2012 at 8:37 PM | Permalink

          Another powerful connection to Gleick was noted at WUWT

          Gleick wrote a book (US water policy) with a foreword by William K Reilly who is Chairman of the Board of WWF, director of DuPont, Conoco Phillips, National Geographic and more, and a visiting professor somewhere.

        • hunter
          Posted Mar 1, 2012 at 6:52 PM | Permalink

          In the gilded age of the 19th century, reformers pointed out that the pattern of interlocking directorships and trustees and management led to an environment vulnerable to corruption and bad business. I would suggest that the big green NGO world, media and government are suffering from the same dysfunction except possibly larger.

        • kim
          Posted Mar 2, 2012 at 10:08 AM | Permalink

          Say its name, say its name: Ancien Regime.
          ==========================

  10. P. Solar
    Posted Feb 28, 2012 at 7:25 PM | Permalink

    >>
    Peter [Gleick] would have been smarter to get somebody else do his “hammering” of Heartland for him.
    >>

    This would require someone smarter than Gleick that would NOT get caught, at the same time as being dumb enough to do it for him.

    To express this mathematically, I suspect the UNION of those two groups would be the NULL SET.

    Also, I’m not sure that adding conspiracy to his charge sheet would have been any “smarter”.

    I’m glad I don’t have Lacis as my strategy advisor.

    • D. J. Hawkins
      Posted Feb 29, 2012 at 2:07 AM | Permalink

      Mmmmm, possibly you mean the INTERSECTION of those two sets?

    • Morph
      Posted Feb 29, 2012 at 5:14 AM | Permalink

      I noted this. Was it wise for him to suggest that a better method would be to (effectively) “get someone else to break the law instead” – doesn’t this open up a conspiracy charge where all are just as guilty as each other ?

      An interesting side question is whether others were involved ?

  11. Posted Feb 28, 2012 at 7:26 PM | Permalink

    Let’s not forget California Law as well, S. B. 1411

    THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

    SECTION 1. Section 528.5 is added to the Penal Code, to read:
    528.5. (a) Notwithstanding any other provision of law, any person
    who knowingly and without consent credibly impersonates another
    actual person through or on an Internet Web site or by other
    electronic means
    for purposes of harming, intimidating, threatening,
    or defrauding another person is guilty of a public offense punishable
    pursuant to subdivision (d).
    (b) For purposes of this section, an impersonation is credible if
    another person would reasonably believe, or did reasonably believe,
    that the defendant was or is the person who was impersonated.
    (c) For purposes of this section, “electronic means” shall include
    opening an e-mail account
    or an account or profile on a social
    networking Internet Web site in another person’s name.
    (d) A violation of subdivision (a) is punishable by a fine not
    exceeding one thousand dollars ($1,000), or by imprisonment in a
    county jail not exceeding one year, or by both that fine and
    imprisonment.
    (e) In addition to any other civil remedy available, a person who
    suffers damage or loss by reason of a violation of subdivision (a)
    may bring a civil action against the violator for compensatory
    damages and injunctive relief or other equitable relief
    pursuant to
    paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision
    (g) of Section 502.
    (f) This section shall not preclude prosecution under any other
    law.

    • Eric Anderson
      Posted Feb 28, 2012 at 8:25 PM | Permalink

      Exactly. There is more than just federal law at work here.

      • jorgekafkazar
        Posted Feb 29, 2012 at 3:22 AM | Permalink

        Yes, and there is also civil action in the form of a damage suit. OJ walked on criminal charges, then got hammered with a $33 million judgment in the civil suit.

        In such suits, guilt only has to be proven by the preponderance of the evidence, not beyond a reasonable doubt. Gleick’s authorship of the fake strategy memo may need only be likely in the eyes of a jury.

        Steve: the civil issues are different than the criminal issues and I would prefer not to conflate discussion.

  12. Posted Feb 28, 2012 at 7:29 PM | Permalink

    I wonder what the chances are of a federal criminal prosecution actually happening. Just because a credible case could be made under the cited law, that doesn’t mean the government would actually prosecute, correct?

    Does anyone on the thread have relevant legal expertise and a willingness to offer a suitably disclaimered opinion? I realize that offering opinions on technical points in the absence of domain-specific expertise is a commonplace online, and it’s all part of the fun. But I’m more curious what someone with a background in this specific field would think.

    Assuming there was a prosecution, and Gleick chose to mount a defense, that would be a very interesting trial.

    • Copner
      Posted Feb 28, 2012 at 7:41 PM | Permalink

      I would not like to speculate on the chances of a prosecution, or a successful one.

      I would say, I think it depends to some degree on whom he impersonated.

    • Steve McIntyre
      Posted Feb 28, 2012 at 7:46 PM | Permalink

      What points do you think that Gleick would challenge? If Gleick were charged, it wouldn’t be easy to defend without withdrawing his admissions. His scheme used email i.e. the “wire” element is met. He used false pretences – his impersonation of a Heartland director. Element two is admitted. And he deprived Heartland of “property” – their exclusive use of their confidential data: element three.

      What precisely is a triable issue? Of either fact or law?

      • Posted Feb 28, 2012 at 8:04 PM | Permalink

        I assume that if he chose to enter a not-guilty plea, that he would challenge whatever aspects of the case against him seemed to him and his legal advisors to offer the best chance of optimizing his outcome.

        Is your question, “what precisely is a triable issue?” meant to imply that the option of pleading not guilty and mounting a defense at trial would somehow not be an option available to him at all? If so, why not? Doesn’t every accused criminal have the option of going to trial? Granted, depending on the circumstances it might not be a particularly _smart_ option. But if Gleick’s judgement is such that he thinks committing the acts he’s already admitted to was a good idea in order to draw public attention to Heartland, maybe he would decide that a trial, even a trial in which he loses, would be a noble and worthwhile thing to do.

        I wasn’t trying to impugn your legal analysis. I’m just curious what someone who has actual legal expertise thinks about the question of whether or not Gleick might actually be prosecuted, and if so, what the odds of that actually happening might be.

        • Mike Ozanne
          Posted Feb 29, 2012 at 7:34 AM | Permalink

          Firstly, entering a not-guilty plea purely for the purposes of a publicity show trial is going to *really* annoy the judge. Not only will most of his publicity attempts get objected away, wasting the courts time on an indefensible case is going to be heavily reflected in the sentence passed.

          Secondly does US jurisprudence even recognise the concept of a public interest defence ? We have one here in the UK but it’s intended for matters of Government deception or serious risk to the public. You know, Pharma companies lying about foetus mutating nausea pills, The defence department being disingenuous about where the waste from the anthrax lab got buried. Why were there 1500+ unnecessary deaths in a west midlands hospital, that sort of thing. Would it cover a “Pope craps in the woods” “Sun rises in the east” revelation about a private lobbying foundation which has been as open as it legally needs to be about its funding and indeed more than that in the past, and absolutely pellucid clear about its positions? Unlikely.

          One of the elements of a PID is that there was no other course of action open. It should be noted here that Dr Curry drew, when viewed through the distorting speculums of the typical watermelon, much more damaging material about Heartland than Gleicks effort by employing the dastardly fiendish and underhand tactic of…… writing to the Boss and asking him.

        • Ian
          Posted Feb 29, 2012 at 2:46 PM | Permalink

          John:

          The question of whether someone is guilty of an offence, as opposed to whether they are prosecuted, is really two separate considerations. AS Steve stated, even though his analysis suggests that the cause of action has been made out, the question of whether Gleick will be prosecuted involves a separate, very different assessment. So on that point, you and Steve are in violent agreement.

          As to whether the trial would be “interesting”, in terms of outcome, I think it would prove difficult for Gleick to resile from his confession. Indeed, if it turns out that aspects of the confession were deliberately intended to mislead (i.e., he is actually the forger of the fake memo and there is no substantive “anonymous communication”), then I guess that would make the trial “interesting” from an observer’s standpoint.

          If it did go to trial – why assume that there would be a defence? He has an unblemished record, he’s an upstanding member of the community, Michael Mann and Phil Jones will write glowing testimonials. He has suffered significant damage to his career and life already…Would not a plea bargain be more likely – with an agreed slap on the wrist, and some community service…gasp: probably offering to lecture for free on the dangers of AGW…

        • Posted Mar 1, 2012 at 2:35 AM | Permalink

          A plea bargain would certainly seem more likely than a defense. And by “interesting” I didn’t mean to imply that it would bring about any particular set of shocking revelations. Just that I’ve become fairly obsessively interested in this with only a very few facts to speculate from, and would really love to learn more about what happened. A trial would be a good way to get access to those facts.

      • Posted Feb 28, 2012 at 10:18 PM | Permalink

        Maybe he was using a wireless connection?

        Sorry, it was there, I had to use it.

    • Dave
      Posted Feb 28, 2012 at 8:41 PM | Permalink

      I’ve been wondering that as well. Obviously this is technically a case of wire fraud, but is it of a magnitude that would normally be pursued? I have no idea either way, but as much as I dislike Gleick and his actions, I don’t want to see any crime being disproportionately pursued for political purposes.

      Personally, my gut instinct is that the criminality here is very minor: it’s the breach of ethics and honesty which matters, and that matters regardless of whether there was any infringement of the law. If anything, criminality is a distraction.

      • Michael
        Posted Feb 29, 2012 at 1:20 AM | Permalink

        Dave

        I think that identity fraud is very serious and not minor issue at all. I personally feel their is a significant degree of criminality in these actions.

        • Dave
          Posted Feb 29, 2012 at 12:13 PM | Permalink

          Yes, but not all identity fraud is the same – just the same as not all assaults are the same. This is more a slap in the face than a vicious beating, isn’t it?

      • Posted Feb 29, 2012 at 3:22 PM | Permalink

        Yes it is of that magnitude. The twit who hacked into Sara Palin’s email account was charged with that crime.

        It should be pointed out that the twit, who shall be called Popcorn, was the son of a Democrat member of the House of Representatives. They tried their hardest to get him off, but Popcorn was found guilty of one of the charges (and it should have been on all of them).

  13. JT
    Posted Feb 28, 2012 at 7:35 PM | Permalink

    The statute is made specifically applicable to “interstate or foreign commerce”. What does American caselaw say constitutes “commerce” and do Gleick’s actions make him one who “transmits …. in interstate or foreign commerce, ….”?

    Steve: the emails trigger this clause. Well-settled law.

    • ChE
      Posted Feb 28, 2012 at 8:24 PM | Permalink

      That and the fact that physically this was done across state lines.

  14. Steve E
    Posted Feb 28, 2012 at 7:39 PM | Permalink

    Steve,

    From my reading, it would appear that this is the relevant section from Carpenter vs. United States as you’ve presented it:

    “Confidential business information has long been recognized as property. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 -1004 (1984); Dirks v. SEC, 463 U.S. 646, 653 , n. 10 (1983); Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U.S. 236, 250 -251 (1905); cf. 5 U.S.C. 552(b) (4). “Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy.” 3 W. Fletcher, Cyclopedia of Law of Private Corporations 857.1, p. 260 (rev. ed. 1986) (footnote omitted).”

    Otherwise the “insider-trading/front running” securities aspect of Carpenter v US doesn’t match this case particularly well.

    Steve: the post is about the definition of “property”, not about insider trading. Read the post again.

  15. JJ
    Posted Feb 28, 2012 at 7:43 PM | Permalink

    snip – too much editorializing

  16. Posted Feb 28, 2012 at 7:51 PM | Permalink

    Depending on “who,what,when” etc that he sent the documents to his 15 friends…..

    There could well be a case for conspiracy.

    The forensic analysis of his computer would be a hoot !!!

  17. TedK
    Posted Feb 28, 2012 at 7:57 PM | Permalink

    We cannot conduct a criminal investigation unless there is a clear allegation that a federal criminal statute has been violated,” Ross Rice, an FBI agent and spokesman from the Chicago field office, said via email. “Based on what we know so far, there is no evidence that has occurred.”

    Bigcitylib:
    You clearly have your subjects confused. According to your statement, the FBI don’t agree there is a crime so no investigation.

    Read that sentence above carefully!

    All the agent is saying is that there is not a clear allegation of a crime yet. Give the investigation time and also don’t forget that agents are not allowed to speak about ongoing investigations. So the above sentence is standard fare until the FBI and Heartland are ready to release a statement.

    Also don’t forget that part of this investigation will include Postal Inspectors as Gleick maintains that he received the forgery through the mail from an unknown. Gleick then releasing the forgery as authentic puts him in cahoots with the sender in committing mail fraud.

    Gleick committed multiple alledged criminal acts that reach across a number of law enforcement agencies. Possible every state agency where forged papers are published and libelous claims are made could be involved. Just getting the agencies coordinated will take time and NO! you will not be kept informed via email. Press releases are the only way you’ll officially know.

    • Posted Feb 28, 2012 at 8:27 PM | Permalink

      Also don’t forget that part of this investigation will include Postal Inspectors as Gleick maintains that he received the forgery through the mail from an unknown. Gleick then releasing the forgery as authentic puts him in cahoots with the sender in committing mail fraud.

      Haha. I hadn’t thought of that angle at all.

      If this went to trial and Gleick was able to make a compelling case that he actually had been duped by a separate forger, he might argue that the forger was necessarily someone with access to Heartland’s internal documents, thereby implying some degree of complicity by Heartland in misleading him and setting him on the path to the phishing attempt. I admit it sounds more like a bad courtroom drama than a real-world scenario, but if that actually did come to pass I could imagine it being a factor that a jury might take into account in deciding how guilty Gleick was.

      I’m not saying that that scenario is at all likely, by the way. But if Gleick did receive the email from an anonymous source before the phishing attempt, then it seems like something that might have some bearing on a jury finding that Gleick had acted “in cahoots” with the actual forger.

  18. John Slayton
    Posted Feb 28, 2012 at 8:14 PM | Permalink

    All of this falls in the category of dirty-pool politics that has a long established tradition dating back to the early days of recorded time.

    Well, he got that right for sure. Remember this one? I know not. Am I my brother’s keeper?

    As I remember, that defense did not turn out well.

  19. sHx
    Posted Feb 28, 2012 at 8:20 PM | Permalink

    Lacis:

    But duping Sara Palin into thinking that she is getting a call from the president of France, or duping Governor Walker of Wisconsin into thinking that he is having a private chat with his funding benefactor David Koch – those would seem to fall in the category of political pranks, producing a laugh, and perhaps some degree of embarrassment.

    Peter Gleick didn’t obtain the Heartland documents by pretending to be the “King of France”.

  20. Steve McIntyre
    Posted Feb 28, 2012 at 8:40 PM | Permalink

    The topic is sensitive. I would appreciate it if commenters took care to ensure that their comments are not mere venting. In particular, I would appreciate it if commenters refrained from premature speculation that leads into politics rather than legal issues.

    • Geoff Sherrington
      Posted Feb 29, 2012 at 4:47 AM | Permalink

      There is also a danger from unsolicited blogger comment that might give Parties new ideas on how to manage justice. Some things are best kept in ones brain.

  21. Alexander K
    Posted Feb 28, 2012 at 8:44 PM | Permalink

    I suspect BigCityLib suffers from the psychological effects of excess traffic noise and overcrowding.

    Steve: he lives in downtown Toronto as do I. I think that he lives fairly near me.

  22. justbeau
    Posted Feb 28, 2012 at 8:59 PM | Permalink

    Lacis is a US government employee. Maybe he is a subordinate of Jim Hansen. This seems another instance of a climate scientist popping off with light-weight opinions better deferred to legal experts.

  23. Jeff N
    Posted Feb 28, 2012 at 9:05 PM | Permalink

    Unfortunately, I don’t think the Feds will step in based on this

    9-43.000
    MAIL FRAUD AND WIRE FRAUD
    9-43.100 Prosecution Policy Relating to Mail Fraud and Wire Fraud
    9-43.300 Statement of Policy concerning Venue in Mail Fraud Prosecutions

    ——————————————————————————–

    9-43.100 Prosecution Policy Relating to Mail Fraud and Wire Fraud
    Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.

    http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm

    • Gerald Machnee
      Posted Feb 28, 2012 at 9:38 PM | Permalink

      I do not think it is minor or isolated. It does involve the general public.

    • robin
      Posted Feb 28, 2012 at 9:43 PM | Permalink

      That still leaves it open to Heartland to pursue, and given the publicity I can’t imagine they wouldn’t. If someone commits a crime against you, they can encourage you to settle, but they can’t dismiss it without showing it is frivolous, lacking evidence, etc. Given he admitted to something that is illegal I don’t see that happening.

    • j ferguson
      Posted Feb 28, 2012 at 10:21 PM | Permalink

      Jeff N,
      I agree. The government will see this as a prank which although involving violations of several statutes lacks sufficient adverse effect to require prosecution. My guess is that Heartland will not bring a civil action. They’ve gotten far more benefit from the discovery of this truly stupid act than suffered any tangible loss. The victim is Gleick. He did it to himself.

      I do wonder that anyone who read his rants could ever have taken him seriously, even the people who generally agreed with him.

      • j ferguson
        Posted Feb 29, 2012 at 7:42 AM | Permalink

        I should apologize for my confusion here. The effect of Gleick’s action is not the actual effect post discovery but what the effect would have been had his forgery not been identified as such. I should have been alerted by Steve’s earlier post on dumb criminals. The crime is still the crime no matter how incompetently it is executed.

        I still don’t think it will be prosecuted.

        • Posted Feb 29, 2012 at 8:13 AM | Permalink

          Important distinction, especially, as you say, in the case of a dumb criminal. From across the pond it’s impossible to judge how likely it is the Federal authorities will prosecute. It sounds to me as if Heartland are keeping their civil options open.

          Insofar as the libertarian think-tank has freedom in the matter – and the ironies of that phrase shouldn’t be lost on anyone – one wonders. There is something culturally weird about the reaction to the initial leak and even more so the way Gleick is now being treated. Donna Laframboise’s Where Do Gleick’s Apologists Draw the Line? is the best piece I’ve seen on that subject. A moral and spiritual revolution needed.

        • Posted Feb 29, 2012 at 7:27 PM | Permalink

          Richard, I think there is a whole way of mental functioning that is important to unravel here. I think we’re dealing with a large group of people who, for many reasons, find it completely impossible to even hear different viewpoints to their own, let alone consider that they might be right.

          It’s a cult, not even a religion. And perhaps needs approaching with the tools appropriate to handling cult victims.

    • Posted Feb 28, 2012 at 10:35 PM | Permalink

      I suspect they want to rule out prosecutions that fail to meet a de minimis standard. In this case, though, Revkin and the Guardian are Heartland’s best friends. By telegraphing the story to the world so loudly they removed any possibility of treating this as an isolated transaction between individuals with only minor losses at stake.

    • oMan
      Posted Feb 29, 2012 at 10:41 AM | Permalink

      I agree that there is a larger public interest here. It was not a private predation, but one intended to damage the victim’s reputation with its actual and potential donor base, and with the public at large.

      The manual excerpt also notes that, even if the Feds decline to prosecute, state criminal cases could be brought. Where did Gleick’s activity take place? California, Illinois, both? Other states where he sent the materials he had acquired?

      This is both a four-credit course in scientific ethics and in cyber-conduct (criminal, civil, cultural, etc).

    • harrywr2
      Posted Feb 29, 2012 at 12:49 PM | Permalink

      The US Attorney’s office doesn’t have an ‘unlimited’ budget as is also the case with State and Local prosecutors.

  24. theduke
    Posted Feb 28, 2012 at 9:15 PM | Permalink

    Lacis: “After all, deception, ethics, and morality are all relative, depending on one’s culture, circumstances, and purpose at hand.”

    This explains perfectly why climate science is held in such low regard these days.

  25. John Whitman
    Posted Feb 28, 2012 at 9:34 PM | Permalink

    snip – there;s enough meat in this post without speculating on possible offences by other people

  26. robin
    Posted Feb 28, 2012 at 9:39 PM | Permalink

    Assuming the FBI is investigating this already, are questions they ask Gleick on record? If so, would they ask if he wrote the fake memo, or would that be beyond the scope of establishing whether a crime had been committed? While impersonating someone to obtain confidential documents and publishing them seems a no brainer for a case (even before this skilled analysis), it think there are two potential charges that are even more serious.

    One is forging the document. I don’t know the law, but forging seems much more calculated and serious in this situation. I would be curious to hear the opinion of anyone defending his actions before this is proven one way or another. Would that be indefensible, or would you consider it to be more ‘pranks’, or justified by the ‘greater good’?

    The second potential charge is if he did write the memo and lies about it, or tries to destroy/alter evidence. That can be the most serious, and as days go by it will get harder and harder to come clean on the lie. A recent example of this is the ‘Hope’ poster guy. I even share his feelings that the photographer was overstepping there, but he faked documents, destroyed evidence, and lied to the courts. He’ll get jail time for that.

    http://www.usatoday.com/news/nation/story/2012-02-24/Obama-poster-artist/53237558/1

    It also shows how hard it is to cover your tracks in the digital medium.

  27. Ron Cram
    Posted Feb 28, 2012 at 9:53 PM | Permalink

    Steve,
    Nice post. No lawyer could understand or explain the law any better than you did here.

    snip – over editorializing about Lacis

  28. Alec Rawls
    Posted Feb 28, 2012 at 9:59 PM | Permalink

    The Carpenter line that nails it is:

    Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.
    The statute itself leaves open the possibility that Gleick would have had to obtain something of monetary value to himself (“money or property”) but Carpenter here quite explicitly slams that door. It is sufficient that his theft of Heartland’s property harmed Heartland, as Gleick was self-professedly trying to do and did do.

    Carpenter was addressing an opposite situation, but its language nails both.

  29. Billy
    Posted Feb 28, 2012 at 10:05 PM | Permalink

    I am not a mind reader or legal expert. That aside, ravings by Gliech and his supporters indicate that he intended to and believed that he was destroying Heartland’s credibility and ability continue its advocacy business. That would be financial harm in my eyes.

  30. Billy
    Posted Feb 28, 2012 at 10:16 PM | Permalink

    Scaling back from a death blow to a minor prank is a pretty big step.

  31. Posted Feb 28, 2012 at 10:22 PM | Permalink

    I don’t think Heartland is going to push for a prosecution, really. If they do, they’ll be demonized by certain factions as picking on “poor Phil Gleick” for being a little overzealous.

    • Rhoda Ramirez
      Posted Feb 28, 2012 at 10:43 PM | Permalink

      If they don’t go after Gleick it might look like they’re afraid of him and the warministas’ claims.

      Frankly, if Gleick isn’t prosecuted it will be a field day for e-mail and other types of fraud as well as forgery against anyone who isn’t a warminista.

      • tomdesabla
        Posted Feb 28, 2012 at 11:40 PM | Permalink

        Actually, I do think they have to tread very carefully, and they will. One thing they won’t do, is go overboard trying to nail anybody. It won’t make them look good.

        • Posted Feb 29, 2012 at 12:27 AM | Permalink

          That’s my thinking as well. I don’t think they’re going to go for the whole nine yards.

        • Ron Cram
          Posted Feb 29, 2012 at 12:54 AM | Permalink

          I would expect Heartland to prosecute to the fullest extent of the law. It appears California law was also violated. It may be better to prosecute in a state court rather than a federal court.

    • D. J. Hawkins
      Posted Feb 29, 2012 at 2:18 AM | Permalink

      Jeff, come on! Do you really think that Desmog Blog and “The Borehole Gang” can possibly hold Heartland in greater disdain than they already do?? Good Lord man, they already have the volume knob up to 11!

      • Posted Feb 29, 2012 at 10:35 AM | Permalink

        No I don’t think they could hold HI in any greater disdain than they already do. It’s the fence-sitters that I’m thinking of. HI has been demonized, as have Steve, Anthony, and countless others. But the general public really isn’t aware of a lot of this stuff. My wife, for example, knows squat about it, and isn’t interested in discussing it.

        I’m just thinking out loud, like most of us are. I am not saying whether or not HI should vigorously prosecute, just speculating on whether they will, and to what extent.

        • theduke
          Posted Feb 29, 2012 at 11:45 AM | Permalink

          I think they have to be aqgressive and will file against Gleick. I don’t think fence-sitters will be a consideration. My sense is that they will have to wait to see what the authorities in Washington and California do before they file for civil damages. If you are filing for civil damages, it’s better if you have a criminal conviction in place that establishes guilt. (Perhaps Judge PhilH can comment on this.)

          This kind of nonsense has got to stop. A lot of other organizations on both sides of this issue and others could be similarly targeted in the future if a crime like this is allowed to go unpunished.

        • theduke
          Posted Feb 29, 2012 at 11:52 AM | Permalink

          I see that oMan is also a lawyer and has a similar take:

          http://climateaudit.org/2012/02/28/18-u-s-c-1343/#comment-327201

    • Tpaul
      Posted Feb 29, 2012 at 11:35 AM | Permalink

      It seems to me that the Board of Director have a fiduciary responsibility to insist on prosecution (press charges). They may not have shareholders, but their sponsors and donors placed their faith in an implied contract to maintain confidentiality.

  32. Bill Jamison
    Posted Feb 28, 2012 at 11:04 PM | Permalink

    Very nice analysis Steve! I think both Federal and State laws were broken as Charles pointed out, although the Federal charge would apparently be the more serious since under CA PC 528.5 it’s a misdemeanor. There may be other states charges that could be filed though and if nothing else the state charge allows for civil damages.

    I don’t agree with the assessment that this is a trivial issue since it could potentially cost The Heartland Institute millions in donations.

    It certainly should be interesting to see how all of this ends up.

    • smileyken
      Posted Feb 29, 2012 at 3:29 AM | Permalink

      do Heartland have to suffer a concrete loss? What happens to the case if, for instance, they are seen to gain donors as a result of Gleik’s activity?

  33. tomdesabla
    Posted Feb 28, 2012 at 11:37 PM | Permalink

    My opinion is that of course confidential business information is property – intellectual property. Consequently I also agree with Steve that 18 U.S.C. 1343 or 1341 have been violated and also with Gerald that the guidelines for prosecution have also been met. I also think that I will be shocked, amazed, and pleased if there is any actual prosecution at the federal level.

    Especially if the U.S. Attorney’s office has to initiate it.

    • Duster
      Posted Feb 29, 2012 at 2:22 AM | Permalink

      Even if the Feds or California decided not to prosecute the criminal aspect for some very obscure reason that ignored Gleick’s public confession, there remains the potential for a civil suit. Given a competent attorney and careful jury selection, it would be a slam dunk for Heartland. Provided that they could afford to prosecute the case. One of the realities that the publication of these papers reveals is just how small HI’s financially backing is.

  34. Posted Feb 28, 2012 at 11:38 PM | Permalink

    Another case about wire fraud and falsification of documents.

    “A most unlikely collection of suspects — law schools, their deans, U.S. News & World Report and its employees — may have committed felonies by publishing false information as part of U.S. News’ ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents’ crimes.

    Some law schools and their deans submitted false information about the schools’ expenditures and their students’ undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates’ employment rates and students’ undergraduate grades and LSAT scores.

    U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data’s accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

    February 27, 2012 in Legal Education | Permalink”

    http://taxprof.typepad.com/taxprof_blog/2012/02/cloud-shepherd-.html

  35. James J. Hill
    Posted Feb 28, 2012 at 11:46 PM | Permalink

    Steve – well done sir, but I have a comment that I hope you take in the same vein that I give it. In your last sentence you refer to the alarmists as “the climate community.” Personally I feel that all of us who seriously partake of this entire controversy are citizens of “the climate community.” We consider the climate important and getting a handle on how it works as best we can is extremely important. I am not giving any ground on even that informal title to anyone anywhere any time. They like to refer to our side as “anti-climate.” We are just as pro-climate as anyone. To concede them that ground is to yield an important aspect of this issue unnecessarily.

    Thanks for all your work.

  36. Reed S. Coray
    Posted Feb 29, 2012 at 12:10 AM | Permalink

    Although I’m inclined to believe Dr. Gleick had a role in the authorship/generation of the “fake” Heartland memo, as far as I know it hasn’t been proven. Thus, I’d like to see a criminal prosecution take place if for no other reason than to find out who authored the “fake” Heartland document. If a criminal trial takes place, at a minimum both close professional associates of Dr. Gleick and members of The Heartland Institute could be subpoenaed and asked under oath: “Do you have any knowledge of who authored/generated the ‘fake” Heartland document; and if so, what is that knowledge?” Those lacking such knowledge can in good faith answer “No.” Those who have knowledge and answer “No” run the risk of perjury should others have knowledge and testify truthfully. And if Dr. Gleick takes the stand in his own defense, the question can be put directly to him.

  37. Posted Feb 29, 2012 at 12:28 AM | Permalink

    Oh, yeah. Having been a small businessman who dealt with such things as business information and confidentiality, I fully agree, that the info Gleick acquired was ‘property.’

    Steve, it’s nice you went into the technicalities, but this is established law and Gleick is in a world of trouble, if Heartland presses charges. And I have NO idea why they would not. Maybe out of the goodness of their hearts. Just because Gleick is more or less “the enemy” does not mean the have to. The only reason they possibly would let him off is if they wanted to just say, “No harm, no foul.” But harm was not only done, it was also intended.

    The attempt was obviously to harm Heartland’s good name, which would have monetary harm in the short and long term.

    Any organization like Heartland so harmed has an obligation to its donors, recipients, members, board members, etc., to file charges.

    Gleick is in such deep doo doo…

    • Bob7
      Posted Feb 29, 2012 at 2:19 PM | Permalink

      “Gleick is in a world of trouble, if Heartland presses charges. And I have NO idea why they would not. Maybe out of the goodness of their hearts.”

      Or so as not to make a martyr out of a twit?

  38. Colonial
    Posted Feb 29, 2012 at 12:38 AM | Permalink

    Once wire fraud has opened the door, there’s another danger for Dr. Gleick — a provision of the Sarbanes-Oxley Act that at the very least criminalizes his deletion of the email account after he sent the fraudulent “Heartland Insider” email messages. A careful investigation will undoubtedly reveal that other information was deleted to impede any possible investigation into his actions.

    In January, the Sixth U.S. Circuit Court of Appeals ruled on an appeal from the fellow who hacked into Sarah Palin’s email account during the 2008 election cycle. The first paragraph of the Court’s opinion should send shivers down Dr. Gleick’s spine:

    Defendant David Kernell was convicted of obstruction of justice under 18 U.S.C. § 1519 for deleting information from his computer that related to his effort to gain access to the email account of then-Alaska governor and Vice Presidential candidate Sarah Palin. Section 1519, passed as part of the Sarbanes-Oxley Act of 2002, prohibits the knowing destruction or alteration of any record “with the intent to impede, obstruct, or influence the investigation . . . of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or in contemplation of any such matter or case . . . .” Kernell argues that § 1519 is unconstitutionally vague, and that there is not sufficient evidence to support his conviction. We AFFIRM the conviction and sentence.

    As Steve McIntyre noted, whether Dr. Gleick will be charged is an open question. If he is charged, violations of 18 U.S.C. 1341 and 18 U.S.C. 1343, compounded by violations of 18 U.S.C. 1519, could lead to a long prison term. But wait, there’s more! Title 18 U.S.C. § 1028 prohibits identity theft…

    If Dr. Gleick is charged, he’ll be in the soup!

  39. Johan i Kanada
    Posted Feb 29, 2012 at 12:56 AM | Permalink

    It would be very interesting to hear the legal opinion of a US based lawyer. Anyone?

    (As layman, with some limited contract law experience only, Steve’s post makes perfect logical sense, i.e. the Gleick case seems to fall under 18 USC 1343.)

    • oMan
      Posted Feb 29, 2012 at 10:51 AM | Permalink

      I am a US lawyer and I think Steve M has done excellent work here. By the way, if Gleick were prosecuted and convicted under Fed or state criminal law, it will make it even tougher for him in related civil proceedings. I don’t know the statute of limitations but I imagine there is plenty of time to let him twist in the wind. Heartland can proceed quite strategically here, leveraging this assault in all sorts of ways.

  40. Robbo
    Posted Feb 29, 2012 at 2:03 AM | Permalink

    Possible typo, very near the bottom ‘workhouse’ for ‘workhorse’.
    Or maybe you like ‘workhouse’ better :)

  41. Joe
    Posted Feb 29, 2012 at 2:31 AM | Permalink

    The mills of the gods grid slowly and so do those of the FBI. The comments of the FBI flacks mean nothing at this point.

    Prosecutorial discretion will also be a factor in the case. For a descussion of that see: http://law.marquette.edu/facultyblog/2012/01/28/prosecutorial-discretion-in-the-john-doe-investigation/

  42. bill
    Posted Feb 29, 2012 at 2:35 AM | Permalink

    Places like Heartland sell themselves to potential donors on the basis of their reputation. If their reputation is damaged by illegal activities so is their future earning potential. clearly they have a case against Gleik, and the offence is aggravated by the fake document. Gleik’s ‘prank’ is bound to have some consequences he was not anticipating.

    • GB_Dorset
      Posted Feb 29, 2012 at 4:10 AM | Permalink

      I was going to donate; now I’m not – Gleik’s activities have raised confidentiality concerns.

      • Martin A
        Posted Feb 29, 2012 at 5:14 AM | Permalink

        Oh really? If you really wanted to donate, you could do so without revealing any personal information.

        • harrywr2
          Posted Feb 29, 2012 at 9:11 AM | Permalink

          Not if it was a large sum of money. The IRS requires that an individual that contributes more the 2% of a 501(c)3’s budget be reported on Schedule B of form 990. The IRS treats any ‘identyfing’ information as confidential.

          http://www.irs.gov/pub/irs-pdf/f990ezb.pdf

  43. Posted Feb 29, 2012 at 2:42 AM | Permalink

    I suspect there will be no charges brought or some form of settlement reached, though a civil suit for damages will be filed and win. A number of factors lead me to this conclusion: cost of litigation for HI, level of damage inflicted, some agreement to name others who helped with the conspiracy to defraud, Gleik’s high profile fall from grace, people are genuinely fatigued by this constant bickering and it hurts both sides. I could be wrong obviously, but with his connections to Washington and the press detailing how much this has hurt the “poor guy” (who in my opinion is about as innocent as a porcupine in a nudist colony). In the end, no one in this justice department will have the heart to prosecute someone who is a great advocate of the CAGW movement and who has “learned his lesson.” (wink wink, nudge nudge know what I mean? say no more)

    • Posted Feb 29, 2012 at 9:48 AM | Permalink

      I disagree on both of your points.

      1.)The ‘cost of litigation’?

      Someone correct me if I am wrong, but, if all the violations are crimes, it goes to criminal proceedings and the Federal D.A.’s office would be prosecuting. Only in the civil suit would HI be litigating and paying for lawyers.

      2.) GW Bush (actually President Cheney) stacked the Justice Department with fellow conservatives, some of whom gave a pass on torture. Plenty of them are very likely still there, and they wouldn’t mind doing the nasty on Gleick.

      Steve Garcia

  44. MJW
    Posted Feb 29, 2012 at 2:46 AM | Permalink

    At the risk of appearing so insecure that I need to hog credit (I am, so I will), I believe I was first to mention Carpenter v. US.

    As far as the FBI agent that Big City Lib mentions, I don’t think he knows what he’s talking about. The Sarah Palin e-mail hacker was charged with wire fraud, and though he was acquitted of that charge, it went to the jury. The impersonation of a board member to obtain confidential information falls much more clearly under 18 U.S.C. 1343 then does obtaining access to an e-mail account.

  45. Mike Haseler
    Posted Feb 29, 2012 at 3:51 AM | Permalink

    Steve. Thankyou for treating this criminal activity with the seriousness it deserves. This is not a minor lapse … a spur of the moment action. This was clearly a premeditated attack on an oranisatio which had gone out of its way to befriend and engage the person. It is a person who then vindictively and with knowledge of the huge damage of releasing donor information, then released the information and lied about it.

    There is no question in my mind that this has to go to court and you are right to push the legal aspect, because this is the place such issues should be dealt with. Only when Gleick is in court, will he finally realise that his actions cannot be sanctioned in a civilised country.

  46. Ian Blanchard
    Posted Feb 29, 2012 at 3:56 AM | Permalink

    Is there any likelihood that the status of HI as a non-profit organisation would have any effect on the legal definition of ‘property’ in this case, or is there already precedent on this issue?

    Clearly, confidential business information within a commercially-trading company has been judged to be ‘property’, but is there any likelihood that a judge may consider similar information from a non-profit as being less important?

    My reading of the judgement in Steve’s initial post suggests that the judge set a very broad definition of ‘property’, and so this wouldn’t be an issue, but I would certainly anticipate Gleick’s legal team to consider this as a line of defence if charges are brought.

    Steve: Clearly the defence would defend wherever it could. A 501c3 is entitled to own property – both tangible and “intangible”. “Property” is a very fundamental concept and judges would be loathe to tamper with the definition and a lower court would be bound be the SUpreme Court rulings.

    • Ian Blanchard
      Posted Feb 29, 2012 at 4:02 AM | Permalink

      Oh, and further to the above, I wonder if this is why Gleick’s mea culpa basically confessed to the wire fraud but pushed the potential for a deformation suit away by saying that the fake memo was sent anonymously.

      Clearly, if the authorship of the fake memo can be pinned on Gleick, he is open to a very significant civil action for defamation. I wonder if HI would consider pursuing this anyway, since the burden of proof is much lower and they have a good chance of proving the balance of probability that Gleick WAS the author. The only risk to HI would be that if they lost then Gleick’s hero/martyr status gets a boost.

      Steve: my own guess is that civil liability was probably a secondary issue on Gleick’s mind. Within the scientific community, the forging of the memo would be viewed much more seriously than fraudulent impersonation and I suspect that that weighed on Gleick’s mind. But no oneknows right now.

      • Ian Blanchard
        Posted Feb 29, 2012 at 9:35 AM | Permalink

        Steve
        Thanks for the replies. Just thought these were a couple of points that would be worth considering and/or clarifying.

        Oh, and sorry for the rather questionably typo – I’m sure it would be ‘defamation’ rather than ‘deformation’ ;-)

      • Posted Feb 29, 2012 at 9:52 AM | Permalink

        I would think that even if HI can’t prove Gleick forged the fake memo himself, he would still be liable for civil or even criminal libel penalties for maliciously circulating it with no reason to think it was real. Any lawyers care to opine?

        • Ian Blanchard
          Posted Mar 1, 2012 at 5:42 AM | Permalink

          Hu
          Noting I am not a lawyer (or in the US), and my dealing with lawyers has been in the role of an Expert Witness in civil litigations in the UK and Ireland.

          Gleick’s story is that he was sent the memo anonymously, and obtained the HI documents to verify the information therein. As such, the defence would clearly be that he believed the contents were real and had been verified on the strength of the phished documents from HI. His failure to spot the errors (the double counting of some amounts and the blatantly wrong information regarding the Koch donations) might count against him, but I think this defence would largely stand up unless further information on the source of the memo is forthcoming in Discovery.

          Of course, if it can be shown, at least to the balance of probability, that Gleick was the author of the fake memo then he really is in a world of trouble.

          -snip-

  47. JohnH
    Posted Feb 29, 2012 at 4:04 AM | Permalink

    Lacis says ‘This is to be differentiated from all those activities that are explicitly illegal, such as breaking into Watergate, hacking into Sara Palin’s e-mails, or the hacking and posting CRU e-mails.’

    Funny how releasing emails subject to FOIA but surpressed makes it into the list. And as the ‘crime’ was committed in the UK the defence of ‘public interest’ is allowable as the releasers of the MP’s expenses are fully aware.

    • Mike Ozanne
      Posted Feb 29, 2012 at 8:48 AM | Permalink

      “JohnH

      Posted Feb 29, 2012 at 4:04 AM | Permalink | Reply

      Lacis says ‘This is to be differentiated from all those activities that are explicitly illegal, such as breaking into Watergate, hacking into Sara Palin’s e-mails, or the hacking and posting CRU e-mails.’

      Funny how releasing emails subject to FOIA but surpressed makes it into the list. And as the ‘crime’ was committed in the UK the defence of ‘public interest’ is allowable as the releasers of the MP’s expenses are fully aware.”

      As we peruse the 27 8X10 color glossy pictures with circles and arrows and a paragraph on the back of each one of the powder burnt gunshot wounds in Dr Gleicks feet; it’s worth making one or two comparisons about this and the CRU e-mails with regard to Public Interest.

      we know who stole Heartlands IP and breached their confidentiality, he confessed. The breach was conducted from the outside. Their appears to be no material that justifies breaking the law to obtain it. Nor does it seem that there was no other path open to reveal information about Heartland. They’ll tell you a whole bunch of stuff if you just write and ask.

      We don’t know who revealed CRU’s e-mails, whether it was via internal or external access, and whether the person who did it was authorised to do so or not. As CRU committed a criminal offence (Statement of Deputy Information Commissioner Graham Smith 27/01/2010 ref section 77 of the Freedom of Information act “to prevent intentionally the disclosure of requested information”) to supress the information then a PI defence would be credible. In this case matters of genuine public interest were involved, and there seems to have been no other way in which that interest could be served.

      There doesn’t appear to be any ethical justification for going after Heartland. Gleick’s charges “ongoing efforts — often anonymous, well-funded, and coordinated — to attack climate science and scientists and prevent this debate, and by the lack of transparency of the organizations involved” really don’t hold water. Heartland are blatently not well funded, nor is their any indication that they broke US law in the way they managed and accounted for donations.Nor are they in receipt of public money, Nor are they an agency engaged in work contracted to government. Most of the infuential “Skeptics” are far from anonymous; and in the end expecting a scientist to properly publish his results in a way that allows the work to be reproduced is not an attack. Nor is failure to agree with a hypothesis an “attack”. I was particularly amused by how Heartland cunningly prevented him from debate, by asking him to take part in one. Gleick targetted Heartland because HE didn’t want a debate and doesn’t tolerate disagreement with his views.

      CRU are a publically funded body engaged in publically funded work who refused public access to its results in breach of the law.

      So is the good doctor an ethical whistleblowing superhero David taking on the big-oil Goliath, I rather think he is a bad-tempered intolerant tweren’t who sought to supress disagreement with his opinions.

      /sarc and hyperbole ON
      almost as ethically bad as mass-murder or wearing lime green corduroy
      OFF

      • David Jay
        Posted Feb 29, 2012 at 12:24 PM | Permalink

        “Lime Green Corduroy”

        Mike – you evil little man, even mentioning such porngraphy.
        ;)

  48. Jean Parisot
    Posted Feb 29, 2012 at 4:26 AM | Permalink

    One of the realities that the publication of these papers reveals is just how small HI’s financially backing is.

    The relevant question may be “What are the resources and inclination of the person (or organization) Gleick impersonated?”

  49. Posted Feb 29, 2012 at 5:38 AM | Permalink

    Peter Gleick was simply being inept in his deception (i.e., he got caught doing it).

    This small part of Lacis’s comment just struck me as quite significant and I’m not sure anyone else has noticed yet. This is an implicit acknowledgement of Gleick’s forging of the Strategy Memo.

    The only clues that put the spotlight on Gleick until he was backed into a confession/damage control were the various evidence in the fake Strategy Memo that pointed to Gleick as the author.

    No one in these blogs at this time has any evidence of IP traces by the FBI, or knowledge of Google giving up information via subpoena, or any other trail to Gleick except the clues picked up by Mosher and others from the Strategy doc. The only place where Gleick was “inept in his deception” was the creation of the content and preparation of the Strategy doc.

    So if Lacis states Gleick got caught instead of heroically trumpeting his actions voluntarily, Lacis is clearly saying he realizes that Gleick forged the Strategy document.

    So Lacis realizes that Gleick forged the Strategy doc and this led to him being forced to confess as part of his damage control. Lacis conveniently ignores this particular crime of slander and journalistic fraud when justifying Gleick’s illegal wire fraud, as well as the lies contained in the so-called confession, because he is continuing to point out that it is for a just cause, and such tactics are justified.

    Dr. Lacis. Quoting McCardle:

    After you have convinced people that you fervently believe your cause to be more important than telling the truth, you’ve lost the power to convince them of anything else.

    Dr. Lacis, I believe you’ve lost the power to convince us of anything else.

  50. Neil McEvoy
    Posted Feb 29, 2012 at 6:16 AM | Permalink

    Can interested parties pursue a private prosecution in the U.S., if public authorities decline to press charges, as happens from time to time in the UK?

    • Lewis Deane
      Posted Feb 29, 2012 at 10:34 AM | Permalink

      Got it – you first!

  51. Salamano
    Posted Feb 29, 2012 at 6:22 AM | Permalink

    I wonder how Lacis would respond to:

    (a) Someone impersonating a higher-up within the University of Virginia and somehow acquiring/publishing a set of emails written in the late 90s.

    (b) If the CRU hack was instead a leak from the inside.

  52. pesadia
    Posted Feb 29, 2012 at 6:33 AM | Permalink

    Has anyone considered what the possible implications of not prosecuting are. Isn’t it possible that a precident might be set and lead to more rather than less of this kind of tactic to discredit opponents?

  53. Gras Albert
    Posted Feb 29, 2012 at 6:37 AM | Permalink

    Steve

    In a debate with some consensus supporters on Feb 23 I posted this except from the 2003 USA V POIRIER & DEVEGTER, D.C. Docket No. 97-00508-CR-2-1-MHS which refers to CARPENTER and re-affirms confidential documents as ‘property’ under US § 1343

    Defendants also contend that even apart from the question of the adequacy of the allegations about confidentiality, the indictment was insufficient because the specified documents did not constitute property and therefore could not support a § 1343 wire fraud conviction. In McNally v. United States, the Supreme Court held that wire and mail fraud statutes protect only property rights, and that the words “to defraud,” as used in the statutes, “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.”

    With its McNally decision the Court overturned a line of cases that permitted wire fraud convictions based on deprivation of intangible rights like the right to honest services.

    Shortly after McNally, the Supreme Court elaborated on the scope of § 1343 in Carpenter v. United States. In that case the Court affirmed convictions stemming from the fraudulent misappropriation of prepublication Wall Street Journal articles. In rejecting the contention that the defendants had not defrauded the Journal of money or property by disclosing and using the information in the stories before publication, the Court explained that “[t]he Journal, as one of the defendant’s employer, was defrauded of much more than its contractual right to his honest and faithful service.” Indeed, “the object of the scheme was to take the Journal’s confidential business information . . . and its intangible nature does not make it any less ‘property’ protected by the mail and wire fraud statutes.”

    Gleick obtained Heartland confidential document property with the express intent of using and publishing that information to his advantage, the method he employed was identity fraud and the means of obtaining the information was email. Given that he admits the facts , I don’t see how there can be a clearer case of wire fraud under US § 1343!


    Steve: well-spotted precedent.

    • MJW
      Posted Feb 29, 2012 at 4:14 PM | Permalink

      With its McNally decision the Court overturned a line of cases that permitted wire fraud convictions based on deprivation of intangible rights like the right to honest services.

      That’s an interesting and instructive matter. In the 1987 case McNally v. U.S. the Supreme Court overturned a conviction that was based on the theory that deprivation of the right to honest services was deprivation of property under the mail fraud statute. The very next year Congress added 18 U.S.C. § 1346, which provides: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” So Congress added back in what the Court had taken away. Then in 2010, in an Enron fraud case, the Supreme Court limited the scope of § 1346 to bribes and kickbacks, which were the kinds of things it was applied to before McNally.

      The point is that by adding back the deprivation of honest services, Congress showed that it intended the definition of “property” under the fraud statutes to be broadly interpreted.

      • MJW
        Posted Feb 29, 2012 at 4:24 PM | Permalink

        I should have said, “…were the kind of things the fraud statutes were applied to before McNally.” There was no § 1346 prior to McNally.

  54. Jeremy Harvey
    Posted Feb 29, 2012 at 6:59 AM | Permalink

    Steve, your post very convincingly addresses the issue of whether what Gleick did (even assuming that he did not create the strategy memo) was a criminal act. In that sense, your post is an excellent response to those who wish to argue that what Gleick did was merely a minor case of deceit.

    But I get the impression that Lacis is in fact introducing a second argument, similar to that made by James Garvey in his Guardian article (“Peter Gleick lied, but was it justified by the wider good?”) that has been much discussed in recent days. This argument runs something like: “What Gleick did was wrong according to some interpretations of ethics, and may have been criminal, and will have done much harm to his career. But it served a purpose: to uncover the iniquity of the Heartland Institute, and in that respect, it was useful. On some higher plane of morality, whether what he did was criminal or not, it was the Right Thing To Do, and we should be grateful to him for his sacrifice.”

    Your case that what Gleick did was in fact criminal is perceived by those making this argument to be a petty detail. I get the impression that we’ll see a lot more of this type of reasoning over the coming months.

    Steve: I have another post addressing this question. A post that considers some interesting history.

    • Jeremy Harvey
      Posted Feb 29, 2012 at 11:12 AM | Permalink

      Looking forward!

    • Posted Feb 29, 2012 at 11:23 AM | Permalink

      Why do I read “interesting history” as being potentially embarrassing to some high-profile players in the drama so far? Hostages to fortune aplenty. Me too, Jeremy.

    • Craig Loehle
      Posted Feb 29, 2012 at 1:11 PM | Permalink

      It is of course legal to break down a door to save someone from a fire. The reasoning of some is that the climate emergency is so great that mere wirefraud to obtain evidence of dastardly deeds (ie, disagreeing with them)is quite justified and is similar to the burning house example.

      • tpaul
        Posted Mar 15, 2012 at 3:21 PM | Permalink

        Way late, I know…

        The analogy you used has problems. Kicking down a door is normally perceived as an illegal act, a precursor to entering for nefarious purposes. Kicking down the door of a residence on fire lacks mitigation if the supposed ‘rescuer’ steals or commits others unlawful acts before, during, or after the alleged rescue.

        Another problem… You can’t start a fire after kicking down the door to justify the kicking.

        In summary: the door was kicked open (the impersonation); an unlawful act occured (documents stolen, etc.); a fire was started to justify the kicking (the forgery).

        How’d you like to hear the apologists for Gleick go along with THAT analogy?

    • Sean Inglis
      Posted Mar 1, 2012 at 5:40 AM | Permalink

      Supposing for a moment that Gleick did write the anonymous memo, criminal considerations may come second to personal embarrassment.

      Framed as a Gleick-penned effort, much of the content of the memo is so self-serving that it would be toe-curling to admit to it – possibly an even more powerful motivation to deny authorship than the prospect of legal proceedings.

      The mitigation that he engaged in these activities as some sort of moral imperative also then withers away – perhaps along with the support of his peers.

      • theduke
        Posted Mar 1, 2012 at 10:43 AM | Permalink

        Sean: I would have to assume that his lawyer(s?) would dismiss embarrassment as a consideration in the composition of any statement. What they would be interested in is plausible deniability. The question would be, “What can we plausibly deny and get away with in order to minimize the damage?”

        They would also want to increase the burden of proof on the other side. Proving beyond a reasonable doubt that Gleick wrote the memo could be a tricky affair if not impossible.

        There is also the matter of serious economic consequences in damage awards should it be found that Gleick had defamed and libeled THI.

        • Sean Inglis
          Posted Mar 1, 2012 at 11:46 AM | Permalink

          No argument – assuming he’s shared the full extent of his involvement, and there did seem to be enough wiggle room in his current statements for a whole range of possibilities.

          The way I look at is that it’s one thing to face the music with a great deal of support and a heroic reputation (at least in some quarters), but quite another thing to face it without that apparent support and looking somewhat pooterish.

          And of course there’s a qualitative / logical difference between asking the HI for hard evidence that they *didn’t* write the anonymous memo, and Gleick being asked for hard evidence that he *did* receive it anonymously. The one is virtually impossible, the other perfectly reasonable.

  55. hunter
    Posted Feb 29, 2012 at 8:46 AM | Permalink

    Dr. Lacis’ responses irt Heartland Institute raises the question of his and his peer’s integrity of work. How honest are they? If Gleick is just committing a prank, how many other pranks have they committed? How many papers needed a prank to make the peer review cut? How much testimony has a prank or two in it? How much data is corrected with a prank?
    How many other people with ideas Lacis and pals do not like have had pranks played on them? How about the money? How many pranks are being played with the accounting at GISS?
    The idea that wire fraud is a political prank opens huge doors for pranks in other areas.

    Cross posted at climate etc.

  56. Posted Feb 29, 2012 at 8:47 AM | Permalink

    The point that the whole sorry crowd seems to miss is that mixing “dirty pool political deception” with science EVEN IF one ignores the possible violation of federal law is the entire sorry problem.

    Science is not about political deception. One does not need political deception to carry a scientific argument. That is traditionally done with a careful blend of reason and empiricism, theoretical argument and data. When a scientist — especially one charged as Gleick was with being a defender of ethical scientific practice — indulges in high-school (that is to say, incompetent) hackerism as part of dirty-pool politics to accomplish the specific political goal of stifling the scientific opposition to a weak hypothesis that has long since become a “cause” to the scientist in question, it is time for them to retire and work as a used car salesman.

    I suspect that whether or not he knows it, Gleick has just retired. I hear that the Tesla needs a sales force…

    rgb

    • Posted Feb 29, 2012 at 11:53 AM | Permalink

      …Mixing “dirty pool political deception” with science … is the entire sorry problem.

      Science is not about political deception. One does not need political deception to carry a scientific argument. That is traditionally done with a careful blend of reason and empiricism, theoretical argument and data.

      Indeed.

      Thanks for highlighting this. I feel this principle should be enshrined in law, especially with regard to allowable media practice. We’ve just seen abandonment of good journalistic practice in high-profile media, with Garvey in the Guardian, and with The Times editing out a key phrase from Prof Michael Kelly’s letter.

      And of course, Science is about open debate.

    • cdquarles
      Posted Feb 29, 2012 at 1:06 PM | Permalink

      Re: rgb (Feb 29 08:47), Indeed, but please don’t tar used car salesmen with this. Successful sales careers require high personal ethics. Unethical and/or criminal behavior in sales people might work in the short run, but don’t work well in the long run. Your reputation will precede you.

  57. Lewis Deane
    Posted Feb 29, 2012 at 8:48 AM | Permalink

    A copy and paste from a comment I made on Ben Piles Climate Resistance ( by the way, Steve, what about James Garvey’s even more heinous excuses – he being an alleged ‘philosopher’ – in the UK, after D.Hume, an oxymoron – in the Guardian?):

    A good question would be, what does it mean to be an ‘idiot’? I’ve always been somewhat chuffed by the fact that, according to the only IQ test I was compelled to take, I scored 96 – ie, subnormal! I’m sure Garvey and his sub-friends could best me – or not so sure, but I’d give them a try (I won the A level maths prize of my school at eleven, for God sake!). No, what we’re talking about is moral stupidity. That elemental human quality of being able to stand by your words (so elemental ancient Chinese just gives it an ideogram – ‘sincerity’!). And looking at the post Geoff referenced (Bishop Hill on Garvey) and reading some of the comments, it is obvious (how representative we don’t know but from my experience, very) that this feeling for sincerity is ‘white hot’, as I say, and bothered, not, again, merely by Gleick, but by his ‘apologists’, what they, and I, would call apologies for human beings. Ethics.

    • Lewis Deane
      Posted Feb 29, 2012 at 9:05 AM | Permalink

      Further, what some people fail to distinguish, is between Criminal and ethical behaviour. In fact the legal system, however much it may seem to formerly coincide, is not an ‘ethical’ system, for it is based on a very business like contract between the ‘subject’ (or ‘citizen’, depending on legal system) and the State. You agree to behave under these stipulations and we give you the privileges of ‘Civilization’. That is why the archetype of the consequences are ‘exile’ (prison merely being internal exile – for modern and practical reasons). Ethical and moral considerations are therefore other and, in a secular State, personal or community based or familial. Of course, that gives the imbeciles some wriggle room. But hence shame and the stinging accusation of hypocrisy.
      Finally, in England (I don’t know about Scotland) there is such a thing as a ‘private prosecution’ – ie, when the police fail to act, an aggrieved party can prosecute the ‘offender’. I’m sketchy as to whether its ‘Civil’ or ‘Criminal’ law but is there such a thing in the US?

      • Lewis Deane
        Posted Feb 29, 2012 at 9:33 AM | Permalink

        By the way, wouldn’t it be good to have a type of Leveson Inquiry into the whole damn lot of them (interesting watching – James Murdoch, of whom I was impressed, has just resigned!). If that’s not Neronic (my neologism!.

      • Neil McEvoy
        Posted Feb 29, 2012 at 9:39 AM | Permalink

        Lewis, we meet again! I posted the exact same question about private prosecutions about six posts above – I hope someone will be along to answer.

        • Lewis Deane
          Posted Feb 29, 2012 at 10:30 AM | Permalink

          You’re to fast for me, Neil (told you I was dumb!)!

  58. Stacey
    Posted Feb 29, 2012 at 8:50 AM | Permalink

    “And, there was some poor secretary at the Heartland Institute who was being gullible and naïve (I hope she still has her job).”

    Ironic that he lays blame on a victim of Gleick’s deceit?

    • Hoi Polloi
      Posted Feb 29, 2012 at 9:30 AM | Permalink

      Not ironic, but characteristic, we know that everybody who is not in “The Cause” can be attacked freely and in any way, without any repercussions (acc. the warmista). Because it’s for the good and they’re saving the planet.

    • Posted Feb 29, 2012 at 10:38 AM | Permalink

      You can bet, from now on, any requests for adding new email accounts will result in a phone call to the number on record, before even replying to the email.

  59. TAC
    Posted Feb 29, 2012 at 9:16 AM | Permalink

    Steve, as always, thank you for setting forth the facts with such clarity. In this case they amount to a very sad and very human tragedy. It is hard to imagine how Gleick, smart and thoughtful, so horribly lost his way. The consequences, for him, are catastrophic.

  60. PhilH
    Posted Feb 29, 2012 at 9:49 AM | Permalink

    Writing as a former assistant district attorney and a former assistant public defender for many years and as a state criminal court judge for the past twenty years, my opinion is that, as Steve has shown, a clear federal criminal law violation has occurred in this instance.

    Obviously I do not know if he will be prosecuted. That will be the judgment of some US Attorney, or some one higher up the chain. The statement by the FBI spokesman is, at this point, non-operative.

    As to Dr. Lacis’s comment, I find it logically ignorant and morally repugnant.

    • polski
      Posted Feb 29, 2012 at 10:51 AM | Permalink

      PhilH

      With your years of experience what do you think Gleick’s lawyer would offer up as a defense for his admitted behaviour?

      • PhilH
        Posted Feb 29, 2012 at 11:39 AM | Permalink

        Whatever in the hell he can.

      • AndyL
        Posted Feb 29, 2012 at 1:25 PM | Permalink

        mitigation?

  61. michael hart
    Posted Feb 29, 2012 at 9:56 AM | Permalink

    What of the unfortunate employee? Do they have an independent right of redress? If Heartland’s story is true then Gleick is stating a very public untruth about the employee. If Gleik’s story is true then Heartland is stating an untruth about the employee. So the employee, who presumably knows the truth, is damaged by either account. Maybe that would not be a problem as long as their personal details are not in the public domain and/or they are not seeking alternative employment.

  62. EdeF
    Posted Feb 29, 2012 at 9:57 AM | Permalink

    I think it very unlikely that this administration would indict one of the team. I agree that should they do so he could be in some jeopardy.

  63. Posted Feb 29, 2012 at 10:07 AM | Permalink

    Playing weekend lawyer, I completely agree with TedK, that libel is also on the table in this case. And this would even pass the ‘smell test’ for libel in the U.S., where it is much more rare and difficult to prosecute libel cases than in the U.K.

    Gleick knowingly attempted to injure the reputation of HI, with wanton (if insane) disregard for the truth.

    [from “libel legal definition of libel” at http://tiny.cc/0p3sj

    libel 1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact, and is not clearly identified as an opinion. While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for “general damages” for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called “special damages.” “Libel per se” involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune for actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct. The rules covering libel against a “public figure” (particularly a political or governmental person) are special, based on U. S. Supreme Court decisions. The key is that to uphold the right to express opinions or fair comment on public figures, the libel must be malicious to constitute grounds for a lawsuit for damages. Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect. 2) v. to broadcast or publish a written defamatory statement. (See: defamation, slander, libel per se, public figure)

    The clear language of this sounds like it applies in every way. Malice did exist. Harm was intended and could have happened. It was written – and published – not spoken. And it was a lie. It goes beyond the ‘obvious’ injury to being intentional, so it far exceeds that threshold. Does HI have the standing of a ‘public person’? Organizations are legal ‘persons’ in the U.S., so that would probably apply, but the de facto case certainly can be made that the libel was malicious and intentional. It’s up to courts to decide if any of what I am saying is true is legally true.

    I wonder if anyone has pleaded Temporary Insanity in a libel case? It seems that may be his only defense.

    Steve Garcia

  64. Jake
    Posted Feb 29, 2012 at 10:08 AM | Permalink

    Not to detract from this excellent discourse, but Pacific Institute itself may suffer from this incident. Since PacInst is currently under contract to USAID for a $1.3M – 3 year contract, they are subject to Federal Acquisition Regulations (FAR).
    Specifically, section 9.4 on Debarment has this piece: 9.406-2 Causes for debarment:
    “(vi) Knowing failure by a principal, until 3 years after final payment on any Government contract awarded to the contractor, to timely disclose to the Government, in connection with the award, performance, or closeout of the contract or a subcontract thereunder, credible evidence of—

    (A) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code; “

  65. Bruce
    Posted Feb 29, 2012 at 10:13 AM | Permalink

    The quote: “I hope she still has her job”

    If she doesn’t, I hope she sues. Or presses charges.

  66. Craig Loehle
    Posted Feb 29, 2012 at 10:15 AM | Permalink

    By publishing the donor list (and for that matter the fake memo), there is indeed a deprivation of “use” of that info and a financial taking because HI can lose donors.

  67. Manuel
    Posted Feb 29, 2012 at 10:33 AM | Permalink

    Lacis the Laconian: theft is only wrong if you are caught.
    This is Sparta!

    • Lewis Deane
      Posted Feb 29, 2012 at 10:55 AM | Permalink

      Why ‘moderation’, Steve?

      • Lewis Deane
        Posted Feb 29, 2012 at 10:58 AM | Permalink

        One final attempt:

        In Sparta theft and all sorts of outrages where encouraged in that peculiar City State ( a partial ‘Ideal’ for all the so called Philosophers – especially Plato and later, Aristotle – how much ‘philosophers’ are the flatterers of Tyrany!?), for young males, as long as one didn’t get caught. If one did, and depending on the circumstance, even your putative mother (somewhat obscure!) would throw you over the City wall. The Ideal, indeed!

      • Posted Feb 29, 2012 at 5:33 PM | Permalink

        Lewis Deane: It’s the Categorical Absolute of CA.

  68. Craig Loehle
    Posted Feb 29, 2012 at 10:41 AM | Permalink

    There are 3 paths to investigation: 1) FBI sees something obviously suspicious and goes after it, 2) A US attorney becomes interested, 3) civil proceedings. Even if 1 is not happening (I have no idea) does not mean the story is over.

  69. Posted Feb 29, 2012 at 10:53 AM | Permalink

    The issue of whether Peter Gleick’s actions should or should not be prosecuted based upon the notion that the crime itself was not meeting some certain threshold of ‘seriousness’ should be considered in the context that that Gleick was a high ranking member of an organization that was a recipient of significant federal grant monies – not merely the administrator of a private blog out to exact revenge on his [perceived] ideological foes.

    W^3

  70. oMan
    Posted Feb 29, 2012 at 11:05 AM | Permalink

    It will be interesting to learn who paid for the equipment used by Gleick, and any expenses he incurred, in preying on Heartland. He seems to be the recipient of public funds in various roles. Suppose his computer and email account were funded by a US government grant. That might establish a possible link between a felony and assets purchased with taxpayer money, or a diversion of those assets to purposes outside the scope of the grant, or false claims against the government for payment in respect of activities outside the scope.

    This kind of thing is very well-developed law in the field of medical claims and, I think, increasingly in cases of misdirected public funding of scientific work. Even poor accounting and proper segegation of assets can be problematic.

    It is also an area where private relator actions can be brought if the government does not act.

    The closer you look, the worse it gets.

    • neill
      Posted Feb 29, 2012 at 1:10 PM | Permalink

      This would seem the strongest motivator to get the Feds moving into this. Even if the current DOJ leadership is averse taking action against a CAGW leader, the criminal misuse of taxpayer dollars may not leave them a choice in the matter.

  71. Kenneth Fritsch
    Posted Feb 29, 2012 at 11:20 AM | Permalink

    The comments of Andrew Lacis of GISS sound like the silly partisan defenses that a Rush Limbaugh might make for his partisan favorites’ actions while at the same time reserving the right to severely condemn the same actions if committed by the enemy.

    Seemingly HI has stated good reasons for keeping its donor list confidential (fear of retaliation to the donors by individuals and groups who might have differing POVs) and thus one would judge that revealing those donors through deception did damage to HI. HI in the past had revealed donors but evidently found retaliation to be a problem.

    On the other hand and in the bigger picture, what Gleick did has for the thinking people involved in the AGW discussion been a benefit. It allows us to see where those who provide public comments, advocates and scientists come down on these issues. I ran through Lacis comment, but I do not believe in it I see where he comes down on the very likely forged document.

    • Posted Feb 29, 2012 at 12:10 PM | Permalink

      Kenneth Fritsch had remarked on Heartland Institute having “…stated good reasons for keeping its donor list confidential (fear of retaliation to the donors by individuals and groups who might have differing POVs) and thus one would judge that revealing those donors through deception did damage to [the Heartland Institute]. HI in the past had revealed donors but evidently found retaliation to be a problem.”

      There arises here the thought – to my knowledge not as yet discussed in this forum – that the Heartland Institute’s donors appear to have suffered injuries as the result of Dr. Gleick’s actions and those of his sputniki.

      Are the donors not to be considered in this kerfluffle?

      Previously mentioned here is the fact that the documentation on donors required by the federal government of the Institute is held by federal regulations to be confidential, not subject to disclosure by the I.R.S. on any casual basis.

      I’d think that the Heartland donors have more than sufficient cause, both individually and in class action, to engage the services of the Plaintiff’s Bar in seeking compensatory and punitive damages from Dr. Gleick and all those jointly and severally responsible in Dr. Gleick’s violations of both ethical practice and criminal law.

  72. Posted Feb 29, 2012 at 11:36 AM | Permalink

    bigcitylib provides this link above, RE agent Rice:

    bigcitylib
    Posted Feb 28, 2012 at 7:27 PM
    ….

    http://dyn.politico.com/members/forums/thread.cfm?catid=22&subcatid=76&threadid=6467393

    But next in the same Politico link is this interesting item —

    Peter Gleick’s career isn’t over despite the big scar linked to his duping the Heartland Institute, says Kevin Trenberth, an atmospheric scientist at the National Center for Atmospheric Research in Boulder, Colo. “I think this pushes Peter in the direction of getting even more involved on the side of being an advocate,” Trenberth told ME on Friday. “He’s had a strong science background, especially related to water. I don’t see this as the end of the road for Peter by any means.”

    I expect Gleick will be back in 5 or 10 years as the Stephen F. Scheider Memorial Professor of Climate Science Ethics at Stanford, or some such. Think Jeb Stuart Magruder after Watergate.

    • Steven Mosher
      Posted Feb 29, 2012 at 11:51 AM | Permalink

      of course not. In academia you can be in prison for sex crimes and still publish science

      • Posted Feb 29, 2012 at 12:25 PM | Permalink

        Steven Mosher writes: “In academia you can be in prison for sex crimes and still publish science.”

        Not just “in academia.”

        The greatest virtue of the sciences is that the identity of the observer (and his personal failings) matter not one goddam little bit as long as his methodology is valid and the information he presents is congruent with objective and therefore verifiable reality.

        Elsewise the Annus Mirabilis papers would never have seen publication because they were the work of a mere patent office clerk, right?

        • oMan
          Posted Feb 29, 2012 at 1:04 PM | Permalink

          Rich: Re the Annus Mirabilis papers, “yes, but.” Namely, if their author had then been a member of the professoriate, he and they would have made a bigger splash sooner. Tribal identity does matter…

        • Steven Mosher
          Posted Feb 29, 2012 at 6:11 PM | Permalink

          It’s not about the scientific truth of the matter which is supposed to be true of the individual observer or his funding. Rather, its a commentary on the community. In business if you commit a serious crime you can pretty much give up hope of having a good career down the line. What this says about the community is unclear. It’s not about the science. Im not convinced it’s entirely positive

    • michael hart
      Posted Mar 1, 2012 at 10:05 AM | Permalink

      If it is accurate, I interpret Trenberth’s comment slightly differently. To his credit, he used the past tense: “…he’s [Gleick] HAD a strong science background..” That came after the statement that “this pushes Peter in the direction of getting even more involved on the side of being an advocate..”
      Note that it “pushes” Gleick towards advocacy. I like to think that Trenberth also means it “pushes” Gleick away from science.

      The bigger problem for Gleick is that his synthesis of evidence may have finished his future as a scientist, but his breaking of “the eleventh commandment” may have finished his future as an advocate.

  73. Doug in Seattle
    Posted Feb 29, 2012 at 11:55 AM | Permalink

    I don’t think the US government would press charges unless forced to do so. Whether they can be forecd to do so is a completely different question.

    • Posted Mar 1, 2012 at 8:32 AM | Permalink

      If Heartland, the harmed party here, decided to press charges, then the Federal DA has to look into the charges. The DA may decide there is insufficient evidence to go to trial and back away, but they must at least pursue the evidence before doing so. Also, it will have to go to a Federal Grand Jury, and if THEY decided on an indictment it goes to trial in Federal criminal court.

      Steve: as I understand the US. system, only the state can “press charges”.

      • Posted Mar 1, 2012 at 10:23 AM | Permalink

        Steve — Yes, but speaking as one who has watched numerous episodes of Law and Order, Boston Legal and The Good Wife, my understanding is that if there is no complaint from the victim, the state or federal prosecutors would not ordinarily take it upon themselves to press criminal charges eg in a burglary, assault or rape. Murder is an obvious exception, since the victim is not in a position to file a complaint.

        So unless and until HI files a state and/or federal complaint, I don’t think any charges will be even considered.

        Does anyone know if HI actually has filed a criminal complaint?

        (An exeption to the general rule is the class of “victimless crimes” of drug use, prostitution, gambling, etc, where the state often intervenes on its own. Insider Trading is another case where the govt intervenes on behalf of a class of presumed victims — the public shareholders — even is none has complained.)

        • theduke
          Posted Mar 1, 2012 at 11:00 AM | Permalink

          Hu: I think we would know if THI had filed a criminal complaint.

          If I was advising THI and had determined they wanted to aggressively pursue this, I would start with the newly minted California law (1/2011) that forbids impersonating someone online.

          http://sfappeal.com/news/2010/12/online-impersonation-law-goes-into-effect-jan-1.php

          There is a problem with that, however. Local authorities are supposed to file the charges and Gleick apparently lives in the Bay Area.

        • Posted Mar 1, 2012 at 12:19 PM | Permalink

          Hu – I agree, and I’ve stated as such elsewhere in these comments, two or three times: Heartland pretty much has to press charges to make this go forward.

          I am sure their lawyers are looking at exactly the same Federal codes as Steve points out here – and more.

        • ChE
          Posted Mar 1, 2012 at 12:41 PM | Permalink

          Heartland can sue in civil court, and they can file a complaint with law enforcement over criminal matters. They can’t “press charges”. That’s a common fiction in popular media. Private parties can’t “press” criminal charges. The local DA or federal prosecutor (as appropriate) makes that determination.

          This is why, for example, they often prosecute someone accused of domestic violence, even when the partner doesn’t want them to. All the partner can do in a case like that is refuse to cooperate. They can’t stop the prosecution. The prosecutor and only the prosecutor makes the decision to prosecute.

        • Posted Mar 3, 2012 at 11:17 AM | Permalink

          I beg to differ. I know the particulars of a case in which an indictment would not have happened if the victims had not ‘pressed charges.’ In fact, the victims were leaned on so that the grand jury could hear the case. The victims were told that the case could not go forward without them pressing charges.

          Now, this may or may not be true in Federal cases. That I have no specific knowledge, one way or another.

  74. ChE
    Posted Feb 29, 2012 at 12:20 PM | Permalink

    There’s another aspect to this, as well, and Heartland may already be thinking in these terms. There are potential financial repercussions to outing the donors. When you real the blog posts ate desmog, etc., it’s clear that they were using this information to scare away donors. This is clearly an attempt to damage Heartland financially, and rather directly. No SCOTUS precedent necessary to make this argument.

    The easy part is showing malice on the part of the blogs. The hard part will being showing this intent on Gleick’s part. If I were running one of the blogs in question, I’d be nervous about this. Their malice is right out in the open.

    • neill
      Posted Feb 29, 2012 at 1:25 PM | Permalink

      “The hard part will being showing this intent on Gleick’s part.”

      Gleick was very upfront in his battle with Taylor that he wanted HI donor information released. It’s no secret as to the why — to weaponize it — that’s the very reason HI currently keeps the info hidden. The history of harassment of HI donors is clear.

      Motive. Means. Opportunity.

    • neill
      Posted Feb 29, 2012 at 1:31 PM | Permalink

      I don’t see how the malice of the blogs can be distinguished from that of Gleick. The blogs pulled the trigger on Heartland with a loaded gun knowingly, willingly supplied by Gleick.

  75. Kenneth Fritsch
    Posted Feb 29, 2012 at 12:31 PM | Permalink

    “I expect Gleick will be back in 5 or 10 years as the Stephen F. Scheider Memorial Professor of Climate Science Ethics at Stanford, or some such. Think Jeb Stuart Magruder after Watergate.”

    Based on the reactions of some climate scientists, advocates and bloggers, I would see his comeback occurring in a much shorter time frame. Rehabilitation time for some in climate science is surprisingly brief.

    • Posted Feb 29, 2012 at 5:23 PM | Permalink

      Well, except that in 5 to 10 more years, the current embarrassment of non-increasing global temperatures may have become the terminal disease of actually decreasing global temperatures as we continue to ride the solar cycle down, and all of the people who are currently “embattled” but still viewed as being noble martyrs for a cause will be treated professionally as if they have a mix of Ebola and Leprosy, especially those that bent ethical rules in order to promote something untrue.

      The climategate and fakegate supporters have literally bet their careers on CAGW. Was it a good bet? Statistically speaking, I don’t think so. In fact, I think that they are likely to lose the bet, because both the science and more importantly, the data, increasingly refute them. I think the “C” in CAGW is in fact already refuted by the last decade of data at the 90% confidence level, which have placed some severe and as-yet unacknowledged limits on the sensitivity/feedback.

      rgb

      • jeff taylor
        Posted Mar 1, 2012 at 10:38 AM | Permalink

        They have not bet their careers. Leapfrogging to the next catastrophe will be quick and the public will not notice one bit. There is no backwash when you are trying to save the world.

  76. Michael Jankowski
    Posted Feb 29, 2012 at 12:37 PM | Permalink

    Lacis was only right about one thing…and it wasn’t in the way he intended:

    “…We’ve got your fingerprints (somewhere on file), so you might as well tell us why you did it…”

    That’s what many folks are saying about Gleick while he denies creating the faked document.

  77. Kenneth Fritsch
    Posted Feb 29, 2012 at 12:37 PM | Permalink

    “I’d think that the Heartland donors have more than sufficient cause, both individually and in class action, to engage the services of the Plaintiff’s Bar in seeking compensatory and punitive damages from Dr. Gleick and all those jointly and severally responsible in Dr. Gleick’s violations of both ethical practice and criminal law.”

    The irony of all this and, perhaps not lost on the perpetrator here, is that: Is it likely that a donor wanting confidentiality is going to want the further publicity of a public trial?

    • Posted Feb 29, 2012 at 12:54 PM | Permalink

      Kenneth Fritsch replies: “The irony of all this and, perhaps not lost on the perpetrator here, is that: Is it likely that a donor wanting confidentiality is going to want the further publicity of a public trial?”

      Their confidentiality already violsted, these donors don’t have much need to fear “further publicity” potentially engendered by a lawsuit seeking damages, do they?

      Once the toothpaste has been squeezed out of the tube, might as well brush your teeth.

      • johanna
        Posted Feb 29, 2012 at 11:28 PM | Permalink

        Indeed, Rich. And the Koch donors have a double whammy – they were wrongly accused (all over the world) of donating to HI climate change work when in fact their donation was for healthcare research. They have already written a letter published in the New York Times asking why Revkin declared the fake memo to be genuine and has never retracted his assertion. (See today’s WUWT post for details). Revkin then proceeded to make hay about the conspiracy of evilness thus revealed. Revkin’s lame reply is that he is an opinion blogger, not a journalist, so it is all OK.

        The fact that an opinion blogger not only made detrimental stuff up, but has not retracted it, is not good news for the NYT if the Koch people decide to sue.

  78. John Whitman
    Posted Feb 29, 2012 at 12:44 PM | Permalink

    The Lacis moral approach to defending Gleick’s confessed unethical and prima facia illegal activities toward HI is at root the same defense of Gleick that John Horgan used. Judith Curry brought attention to Hogan’s defense of Gleick in her Feb 26 post ‘Gleick’s Testimony on Threats to the Integrity of Science’.

    Both Lacis and Hogan use the moral defense that there is a higher moral realm that is above that of nations legal structures, most traditional mores and above any personal self-interest based ethics. They say Gleick is moral on that plane independent of the judgment of the legal system and of the conventional normal societal/cultural ethical norms.

    If you accept the existence of that higher moral level, then they are correct.

    It is the questioning of their claim about its existence that can only refute their argument. There argument is a 25o year old argument started by Kant.

    John

    • Ian
      Posted Feb 29, 2012 at 3:30 PM | Permalink

      The challenge – and innate risk – of that type of shallow assessment, is that it can be used by any “true believer” to justify their misdeeds in relation to almost any cause. It cuts both ways, and can lead to dangerous escalations in circumstances where dividing lines have been emblazoned and positions rigidly entrenched.

      On that basis, at what point does one have to stop? Is it deceitful presentation of data? Is it deceitful analysis of data? Is it fake data? Is it suppressing contrary views? Is it denying promotions – or seeking to have individuals drummed out of their employment? Is it carrying out a fraud to illegally obtain private materials to which you cannot aver any form of legal interest or right? Or…well…my goodness. After all, if you verily believe that the planet’s existence is at stake, where do you have to draw the line?

      There is nothing about Peter Gleick’s actions that are “prank-like”. They were deliberate, considered and intended to inflict as much damage as possible on a party with whom he disagreed. His personal belief in the rightness of his cause neither makes his action moral nor justified. Rather, they were small-minded, bigoted and further polarizing.

      To me, one of the most telling aspects was Gleick’s claim, in his forced confession, that there is a need to “debate” these issues – when his illegal activities were undertaken contemporaneously with a refusal of just such an opportunity.

      (And the “won’t show the donors” meme is weak: Greenpeace doesn’t list its donors, but he would almost certainly speak as after-dinner entertainment at one of their events.)

      Gleick and those claiming his actions were moral and appropriate (except that he got caught, so it looks bad), really do not understand the damage they are doing to themselves and the movement that they claim is so important. The average, somewhat disinterested member of the public, the one who has to foot the bill for decarbonization which is being so vociferously advocated, may not understand radiative physics – but they certainly understand fraud.

      Ultimately, that is the impression that will last.

    • SeanNY
      Posted Feb 29, 2012 at 3:58 PM | Permalink

      “They say Gleick is moral on that plane independent of the judgment of the legal system and of the conventional normal societal/cultural ethical norms. If you accept the existence of that higher moral level, then they are correct.”

      Your statement (“If you accept the existence of that higher moral level”) is insufficient to support your point (“then they are correct.”).

      To complete your “if/then” proposition, you would have to add an additional if:

      “and if on that moral level there is no prohibition on lying,” or

      “and, on that moral level, there is a precept that the ends do indeed justify the means, then”

      Both of those propositions have been debated, but it does not follow (as you suggest) that belief in a higher “moral level” somehow exonerates Gleick.

      • John Whitman
        Posted Feb 29, 2012 at 4:40 PM | Permalink

        SeanNY posted Feb 29, 2012 at 3:58 PM @ John Whitman

        ———–

        SeanNY,

        Thanks for your comment. Steve McIntyre is being pretty tolerant of this IK discussion. Thanks SM . . . . I hope : )

        IK’s epistemology/metaphysics/ethics are an argument against reason being an objective seeking vehicle about knowledge in this empiracal world. IK specifically says that of his philosophy. N’est ce pas?

        If by your ‘no prohibition on lying’ statement you are referring to the following quote correctly attributed to IK “By a lie, a man… annihilates his dignity as a man” your statement does not contradict IK’s criteria for the most unmistakable moral action (on the highest possible level) being complete self-sacrifice for Duty as Duty per se with absolutely no possibility of self-interest/happiness involved; self-annihilation of dignity is a self-sacrifice with no possible mixing in of doing it for happiness or self-interest. IK ‘s extension of Plato’s dual worlds is intented to downgrade the meaning of our world that we sense and perceive and evelvate an ideal world we cannot know.

        To summarize, my understanding is IK would say that annihilating your own dignity as a man is perhaps the ultimate self-sacrifice to Duty and therefore moral in the context of his moral system.

        John

        • John Whitman
          Posted Feb 29, 2012 at 7:12 PM | Permalink

          SeanNY,

          I might add that my fundamental level evaluation of IK is he is not even wrong on epistemology/metaphysics; he is irrelevant. I regard his ethics as dangerous to mankind.

          John

        • Thucydides
          Posted Feb 29, 2012 at 7:30 PM | Permalink

          John, while OT, I know you have an interest in Kant. Human agency was central to Kant’s concept of the ability to act morally at all. When you understand the distinction between the autonomous and the heteronomous will, Kant’s emphasis on duty becomes clearer as a condition of free will. As such, Kant definitely would not consider “annihilating your own dignity as a man” to be a moral act.

          I’m not sure what Kant scholarship you have read, but if you’re interested, I would highly recommend Henry Allison:

        • John Whitman
          Posted Feb 29, 2012 at 8:18 PM | Permalink

          NOTE: Steve McIntyre last of this IK thread. Thanks for patience.

          Thucydides,

          Great comment.

          The only IK book I read in real depth was a direct English translation of his ‘Critque of Pure Reason’. Other Kant philosophy I read were through some History of Philosophy works and Hume vs Kant comparisons.

          I would like to, at some point on an appropriate IK thread continue to discuss, that ‘the distinction between the autonomous and the heteronomous will’ aside, IK would have it moral, for instance, that someone commit the ultimate sacrifice in the name of Duty as long as the person was not at all personally desiring to die.

          OK, on another thread

          John

  79. William Larson
    Posted Feb 29, 2012 at 12:52 PM | Permalink

    Or, Heartland might weigh all the pros and cons and decide “to do the big thing” and publicly forgive Gleick for this transgression(s), in the same generous spirit of their correspondence with him over their invitation to debate. Wouldn’t THAT be something! From my possibly naive viewpoint, that would earn them major points all around.

    • William Larson
      Posted Feb 29, 2012 at 12:55 PM | Permalink

      Typo: “this” should be “his”.

    • Copner
      Posted Feb 29, 2012 at 1:08 PM | Permalink

      I think he would need to admit to faking the memo first. Or if he didn’t fake it, show them everything he knew about the memo.

      Rather than continuing to doubling-up the slander with his “confession”.

      • William Larson
        Posted Feb 29, 2012 at 4:28 PM | Permalink

        Copner: Yes, that makes total sense. Heartland could approach Gleick with the offer: “Admit to the memo’s being fake and we will forgive it all in good will. Interested? If so, we can work out the announcement together.” Now then, if we were Gleick, what would we do? Admit it and be done then with it all, no more legal expenses, etc.; or, let them go ahead with the criminal and/or civil proceedings and gut it out. I suppose that for Gleick that would not necessarily be an easy call.

        • tomdesabla
          Posted Feb 29, 2012 at 10:30 PM | Permalink

          Yes, this is what I meant by treading carefully. They will try to be good natured about it, and forgive all if there is a sincere apology that is actually directed to HI. However, it seems pretty clear that there isn’t going to be a one.

    • Bernie
      Posted Feb 29, 2012 at 1:15 PM | Permalink

      They would be naive to do this without some pretty strong and clear legal agreement that would prevent the CAGW PR machines from turning HI’s civility into proof that HI were guilty of the things implied in the fake strategy memo..

  80. Duke C.
    Posted Feb 29, 2012 at 1:34 PM | Permalink

    “But he that filches from me my good name/Robs me of that which not enriches him/And makes me poor indeed.”
    – Shakespeare, Othello, act iii. Sc. 3.

    • SeanNY
      Posted Feb 29, 2012 at 3:44 PM | Permalink

      Great quote!!

  81. Kenneth Fritsch
    Posted Feb 29, 2012 at 3:01 PM | Permalink

    “If you accept the existence of that higher moral level, then they are correct.

    It is the questioning of their claim about its existence that can only refute their argument. There argument is a 250 year old argument started by Kant.”

    I am not so sure that the Kantian proposition holds here. If Gleick had obtained the documents and he did not forge the document in question and he freely had admitted upfront what he had done then perhaps he was, in his mind at least, appealing to a higher moral level. If he forged the document in question and obviously to spin a false impression on the facts of the matter I am not sure to what higher moral level he would be appealing his case.

    Gleick with his accusations and moral outrage that those who might be in opposition to his views on AGW and how to mitigate it are intentionally misleading people has certainly lost some credibility with his actions. Although I suspect that he and his defenders can impose some double standard whereby his actions are from a moral high ground and his opponents are not because – oh yeah, he and they know they are correct (think consensus) and therefore the means justify the ends.

    • SeanNY
      Posted Feb 29, 2012 at 4:12 PM | Permalink

      Are you talking about _Immanuel_ Kant? Here is what Immanuel Kant said about lying.:

      Truthfulness in statements that one cannot avoid is a human being’s duty to everyone, however great the disadvantage to him or to another that may result from it… [I]f I falsify… I… do wrong in the most essential part of duty in general by such falsification… that is, I bring it about, as far as I can, that statements (declarations) in general are not believed, and so too that all rights which are based on contracts come to nothing and lose their force; and this is a wrong inflicted upon humanity generally… For [a lie] always harms another, even if not another individual, nevertheless humanity generally, inasmuch as it makes the source of right unusable. —- “On a supposed right to lie from philanthropy”, Berliner Blätter, September 1797

      • theduke
        Posted Feb 29, 2012 at 4:46 PM | Permalink

        Kant has it exactly right. If so-called “scientists” are going to lie and deceive to further their noble cause in the political/policy arena, why should we not assume they will do the same in presenting their findings and conclusions?

  82. Kenneth Fritsch
    Posted Feb 29, 2012 at 3:37 PM | Permalink

    “Whereas Kant asserts that the capacity for reason allows humans to establish maxims for proper moral activity in all possible situations, Kierkegaard, in the form of Johannes de Silentio, moves against this universal-ethical position in suggesting that there is a higher duty, which surpasses all forms of human morality.”

    Kant and Kierkegaard on Faith: Marc Williams, Columbia University
    In Service to Morality and a Leap for the Absurd

    Maybe there is some confusion between Gleick’s higher moral level being derived from Kant or Kierkegraard

  83. robin
    Posted Feb 29, 2012 at 6:26 PM | Permalink

    I keep wondering how he could have held that document for such a long time and not saw that is was obviously fake. If he had it as long as he says he did, he must have read it a number of times, and a few times after that to compare it to the documents from Heartland. How could he not see the obviously self-derogatory language in there?

    Two possibilites, 1) he is just not at all smart about seeing things from other people’s perspectives. That would have to be like in the bottom 5% of that category (even semi-autistic). If so, that would also mean the ‘other’ writer had to be really bad at that type of mental empathy as well. Really, how common is that? Seems unlikey that would get past *two* literate people without at least raising a flag.

    The second possibility is he wrote it late in the game and only lightly proofed it. That seems much more likely given some of the obvious red flags and numerical errors. First read just seems a bit weird, by the fourth read there are things that seem impossible.

    Also been thinking, given his day job, it could have been WaterGleick instead of FakeGate. Might have weaned us from the over-tired ‘gate’ suffix. Or trapped us for 40 more years in the prefix, who knows : ).

    • Copner
      Posted Feb 29, 2012 at 7:14 PM | Permalink

      Easy, if he could recognize the mistakes in the memo, he wouldn’t have made them when writing it.

      • robin
        Posted Feb 29, 2012 at 7:28 PM | Permalink

        yeah, I agree, just trying to come at it from his word, where the document was sent to him much earlier. If that is true, then a lot of implausible things also have to be true.

        The biggest imo is that he wouldn’t have sensed something amiss after a few readings and at least asked a friend for a second opinion.

        The second is that the ‘no big surprise’ contents of the memo would induce him to commit fraud only to verify the contents – and then he verifies so sloppily that he misses key figures in error.

        The third is the wild coincidence that a single board meeting’s material would be able to confirm all the memo’s points (some verbatim) when he would have had no idea what he was getting.

        All that before considering people were able to finger him before his confession by the writing style of the memo.

      • Posted Mar 1, 2012 at 5:26 AM | Permalink

        First read just seems a bit weird, …

        Indeed! And since Gleick is so ethical and concerned about integrity, not to mention that he and Bast are peers – as founders and CEOs of their respective organizations – surely if this anonymous “memo” fell into his lap as he claims, the mature, professional and ethical course would have been to call Bast and ask him.

        Had the situation been reversed, I’m quite sure he would have expected Bast to contact him, wouldn’t he?! In fact, in such a reversed situation, I can’t even begin to imagine the extent of the cries of outrage we would hear from Gleickophiles if Bast were to act as Gleick has done!

        • William Larson
          Posted Mar 1, 2012 at 11:38 AM | Permalink

          hro001: I read a lot of good points here and yours is another. Yes, call and ask; it would be the professional thing to do, the ethical thing to do. Thanks.

  84. Kenneth Fritsch
    Posted Feb 29, 2012 at 7:03 PM | Permalink

    “It’s the Categorical Absolute of CA.”

    How about categorical imperative?

    • Posted Feb 29, 2012 at 7:31 PM | Permalink

      It was looking to sound vaguely Kantian and spell CA Ken.

      Spelling out jokes … what I do best at this time of night. Hours of hilarity prevented, like the dissected frog :)

  85. don
    Posted Feb 29, 2012 at 9:26 PM | Permalink

    Well whoever decided to exercise jurisdiction, I presume the search warrant or warrants for his residence, computers, servers, and electronic storage devices and professional papers and records have been served or will be shortly. The plot could thicken with more players depending on the forensic results.

    • Posted Mar 1, 2012 at 10:45 AM | Permalink

      Again, my opinion only, since there has been no arrest or search warrant served by now, I don’t think there will be. Surely the lawyers from HI know that the more time passes, the less a chance of getting all the evidence intact.

      I know, don’t call you Surely. ;)

  86. Posted Feb 29, 2012 at 9:45 PM | Permalink

    Mosher and/or Bast authored the Fake False-Flag Strategy Memo, says Greg Laden.

    No word yet on how they managed to get Dr Gleick to play the role of dupe in their nefarious scheme. I think I know how they did it: the Google search “Mosher hypnotism” returns 340,000 hits!

    • tomdesabla
      Posted Feb 29, 2012 at 10:43 PM | Permalink

      Laden has now broken out the venerable “symp” suffix. Mosher is a “Heartland-symp.” This is like the anti-communist hysteria, where people were seeing either communists or “comm-symps” everywhere. These terms are just too rich – “denialist” “oil shill” “anti-climate” and now the old “symp” suffix. Pretty soon they’re going to work “nazi” in there, I can feel it coming.

    • Posted Mar 1, 2012 at 10:50 AM | Permalink

      After directly accusing Bast and Mosh of composing and planting the fake memo, Laden adds way down at the end,

      It is a conspiracy theory, produced for your amusement and, admittedly, as troll bait.

      It will be interesting to see how many Gleick supporters fail to read the /trollbait tag at the end, and take this at face value!

    • Posted Mar 1, 2012 at 2:27 PM | Permalink

      Greg Laden has now disavowed his “Bast and/or Mosher Did It” apologia for Gleick. Or not: his writing is so arch that its meaning is obscure. Reading him turns out to be a waste of time.

  87. Geoff Sherrington
    Posted Mar 1, 2012 at 6:08 AM | Permalink

    Truly amazing is the volume of speculative dissection of a prima facie episode of law breaking, even before charges are laid. Kant, no less!
    The skill of analysis is shorter and maybe higher in http://www.metrolyrics.com/the-philosophers-song-lyrics-monty-python.html

    • Jimmy Haigh
      Posted Mar 1, 2012 at 1:52 PM | Permalink

      One of my favourite Python moments. And now for something completely live…

  88. Posted Mar 1, 2012 at 8:14 AM | Permalink

    I’m an attorney and a political junkie and I would agree that (a) this meets the elements wire fraud, (b) no Obama appointee is going to prosecute, and (c) a civil action is worth pursuing–especially since that opens up all rights to discovery, which include a right to demand the original “Strategy Memo” which Gleick claims to have received in the mail.

    Despite his denials, I have no reason to believe Gleick really received a memo from an anonymous source. He had “motive, weapon, and opportunity” to manufacture that memo himself AFTER phishing the confidential documents AFTER turning down their debate request due to Heartland’s lack of disclosure, No evidence Gleick has offered yet is inconsistent with his own forgery.

    I’m not saying that Gleick would lose a civil suit. He might turn it into a grandstanding stunt where he argues that the future of the planet is at stake. Of course, two can play at that game… if Gleick chose to make the truth of global warming his defense, Heartland would be entitled to bring in experts to challenge that claim.

    • Posted Mar 1, 2012 at 2:48 PM | Permalink

      Seems that GW truth’s is not at issue
      Global Warming’s not used to defame
      Such defense would seem thin as a tissue
      When he’s outed each donor by name

      Promulgating the lies (maybe writing them)
      In the fake memo: Did he or not?
      But his legal team (this is exciting them)
      Will take all the discovery they’ve got

      They would hope (I’d expect) to embarrass
      Heartland’s donors/supporters still more
      Scare them off, and they’d bluster and harass
      ‘Ere the first motion goes out the door

      But if this gets to sworn deposition
      We would ask our boy Gleick under oath
      “Did you write this?” And in that position
      He is risking fines, jail time, or both

      For our Petergate prodigy probably
      Told some friend of his exploits, and boasted
      Knowing this, with a future so knobbly
      He’d confess rather than being roasted

      Even if he’d told no one (not likely!)
      He knows he’s like a clubfooted cow
      In the china shop world of doc IT
      And thinks they’re gonna get him, somehow

      So the strategy is “Avoid depo!”
      Using motions and every delay
      While the NYT, LAT, WaPo
      Attack Heartland (and us) every day.

      ===|==============/ Keith DeHavelle

      • Posted Mar 1, 2012 at 2:59 PM | Permalink

        Hah! Last minute rephrase in Line 1 of this biz
        Left the grammar all hazy — what’s the meaning of “is”?

        ===|==============/ Keith DeHavelle

  89. Ted Swart
    Posted Mar 1, 2012 at 10:40 AM | Permalink

    For those who have not yet seen it this commentary by Donna Laframboise is an excellent adjunct to Steve’s astute analysis.

    http://nofrakkingconsensus.com/2012/02/28/where-do-gleicks-apologists-draw-the-line/

    snip – over-editorializing

  90. Kenneth Fritsch
    Posted Mar 1, 2012 at 10:57 AM | Permalink

    “Their confidentiality already violsted, these donors don’t have much need to fear “further publicity” potentially engendered by a lawsuit seeking damages, do they?”

    I would think that a defense lawyer might very well want to put those donors in the worst possible light in order to have his defendant appearing to have taken the high ground.

  91. hunter
    Posted Mar 1, 2012 at 6:43 PM | Permalink

    The choice made by Donna Laframboise in naming her expose of IPCC and climate science “The Delinquent Teenager” turns out to be ingenious. What better way to describe a bunch of over privileged, spoiled brats who think far too highly of themselves and far too little of the common decency and scruples that mark responsible adults?

  92. Posted Mar 1, 2012 at 10:28 PM | Permalink

    My reply to Lacis at Climate Etc:

    “After all, deception, ethics, and morality are all relative, depending on one’s culture, circumstances, and purpose at hand.” Absolutely not, truth is truth, honesty is honesty. It’s amazing that anyone involved in climate science could not have grasped this in the last three years, given the damage to their cause from their revealed lack of honesty and integrity.

    In my personal and professional lives, I have never stooped to the level of behaviour which you, and too many of your colleagues, seem to think “normal.”

    Faustino

  93. Roddy
    Posted Mar 2, 2012 at 8:06 AM | Permalink

    http://www.cjr.org/the_observatory/heartland_gleick_and_media_law.php?page=all&print=true

    seems a decent overview of aspects of the legal position.

  94. Posted Mar 12, 2012 at 6:55 AM | Permalink

    As Gleick impersonated an individual in order to elicit documents from HI, does that mean there’s a 3rd prong aside from and federal action, or action the HI may want to press as an organisation?

    I presume that whether or not HI want to prosecute, the individual concerned retains that option, albeit voluntarily informed by whatever strategy HI have in mind?

    Maybe other individual action would be possible – the unfortunate staff manipulated by Gleick for example, although only minor demons in the HI axis of evil, must be feeling somewhat chagrined at being exposed to the public gaze.

    Would further investigation of the “anonymous” memo be difficult to include within scope if an individual decides to stick at it?

11 Trackbacks

  1. […] 71: 3:27PM In his latest post 18 U.S.C. 1343 Steve McIntyre demonstrates how Andrew Lacis of GISS, has no clue about law, and likely no clue […]

  2. By The Gleick Tragedy | Watts Up With That? on Feb 28, 2012 at 8:46 PM

    […] 71: 3:27PM In his latest post 18 U.S.C. 1343 Steve McIntyre demonstrates how Andrew Lacis of GISS, has no clue about law, and likely no clue […]

  3. […] Donna Laframboise adds : Where Do Gleick’s Apologists Draw the Line? Climate audit explains why Gleick could be in serious trouble (not that he will be.) Share […]

  4. […] Donna Laframboise adds : Where Do Gleick’s Apologists Draw the Line? Climate audit explains why Gleick could be in serious trouble (not that he will be.) Idiocy from the LA Times. […]

  5. […] 71: 3:27PM In his latest post 18 U.S.C. 1343 Steve McIntyre demonstrates how Andrew Lacis of GISS, has no clue about law, and likely no clue […]

  6. […] 18 U.s.c. 1343 (climateaudit.org) […]

  7. […] racketeering investigation by federal authorities. Leading critics are sure that the elements of 18 USC 1343 appear already met under admitted […]

  8. […] in order to steal the property (confidential documents) of a private think tank. There is a sound argument that, by doing so, Gleick has confessed to committing a federal felony called wire […]

  9. […] 18 USC 1343 does appear to apply to Gleick’s case, as I discussed in an earlier post in connection with Gleick’s obtaining of documents through identity theft, and additionally […]

  10. […] and posted the words of the relevant law, establishing Peter Gleick’s lack of criminality: 18 U.S.C. 1343: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining […]

  11. […] Gleick and Federal Law 18 U.S.C. 1343 […]

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