Comments on: Above the Law

By: Nick Stokes

Nick Stokes — Mon, 12 Mar 2012 03:27:21 +0000

The Washington Post has some forceful remarks on Cuccinelli's "witch hunt".

By: Lee Moore

Lee Moore — Fri, 09 Mar 2012 14:17:26 +0000

Second nitpick. John Hurt played Richard Rich. Roper was played by Corin Redgrave.

Redgrave, like his sister Vanessa, is a committed Trotskyist revolutionary so it is an additional pleasure that he is on the receiving end of such a good lecture on the rule of law.

(Vanessa also appears in a Man for All Seasons, as Ann Boleyn. Corin is much the better actor.)

By: Libertarian

Libertarian — Fri, 09 Mar 2012 03:37:42 +0000

Hear hear!

By: Nick Stokes

Nick Stokes — Fri, 09 Mar 2012 02:42:54 +0000

Tom,
The post is headed “Above the Law”. The first sentence asserts ” the recent Virginia decision (linked from article here) that public agencies are not subject to the Virginia Fraud Against Taxpayers Act (FATA) is hardly one that resolves any real issue.”. It says that the decision was based on “totally bizarre grounds that the Attorney General is only entitled to investigate individuals and private corporations under FATA and that state agencies (in which category the decision places the University of Virginia) are not subject to FATA.”

I think those characterisations of the decision are wrong. I don’t think that’s a big deal. But they didn’t decide that UVa was “above the law” or even immune to FATA. They just found that the law did not allow the AG to send a CID to UVa. That’s not a bizarre ground for rejecting the appeal; it’s unavoidable.

Steve: Do you seriously think that the UVA would have turned the emails over if Cuccinnelli had just sent agents over to the university as though it were the Motor Vehicles Branch. In my opinion, UVA would fight this tooth-and-nail on some other grounds.

Reflecting some more, I think that the decision may well be as bizarre as it seems. In his decision turning down the CID, the judge could have ruled that UVA was required to turn the emails over on the alternate grounds that they were a state agency and obligated to turn documents over to the Attorney General at his request.

I’m not familiar with Virginia procedure, but in Canada, my guess is that, if a judge thought the Attorney General was entitled to the documents from a state agency without a CID, he would say so and give the order, observing that the CID itself was moot. Rather than playing silly bugger and forcing the parties to repeat the dance with the A-G sending representatives over to the university, the university saying no again and the whole affair repeated from scratch.

On further reflection, my initial observation that the ruling was “bizarre” stands and the caption Above the Law remains reasonable, though on a slightly modified interpretation, as matters have been clarified.

By: steven mosher

steven mosher — Thu, 08 Mar 2012 19:04:06 +0000

Nick, you will have to parse the tree. You are the one claiming it is steve’s position. You can simply ask him if that is his position and clarify the matter. It’s not like he won’t answer.

By: Tom Gray

Tom Gray — Thu, 08 Mar 2012 15:11:00 +0000

In the article Steve McIntyre writes in conclusion

==========
The idea that a state Attorney-General be unable to examine records of state agencies for evidence of fraud also seems very counter-intuitive to me. Does an Attorney-General even require a court order to examine records of a state agency? Why would he have to do anything complicated to look at records of the Motor Vehicle Licencing Bureau (or whatever the Virginia name is)? Can’t he just send auditors in without a court order? If the University of Virginia has convinced a court that it’s a state agency under FATA, why wouldn’t they be subject to the same fate?
===========

So Steve McIntyre asserted that the idea that an Attorney General could not, in any circumstance, get documents from a state agency is counter-intuitive. If the university is not subject to FATA then the AG must be able to get documents in some other way or the decision makes no sense. That is what he wrote

Nick Stokes repeatedly asserts the same thing and claims that Steve McIntyre is incorrect because he said something else. Even if Steve McIntyre agrees with Nick Stokes, Steve McIntyre must be wrong and Nick Stokes right.

By: theduke

theduke — Thu, 08 Mar 2012 15:07:10 +0000

that should read, “. . . (partially) dissenting judges.”

By: theduke

theduke — Thu, 08 Mar 2012 15:05:07 +0000

Nick: your contention flies in the face of an opposing opinion expressed by one of the (parially) dissenting judges. See my March 6th, 9:02 pm response to Steve Mc below.

By: Vargs

Vargs — Thu, 08 Mar 2012 08:33:58 +0000

Ironically, in the UK — from whence this ancient law emanates — Crown Immunity was removed from most agencies in the 1980s by statute. This corrected issues like making NHS hospital kitchens subject to environmental health inspections where previously they’d been exempt.

By: Nick Stokes

Nick Stokes — Thu, 08 Mar 2012 06:52:57 +0000

Steven,
OK, but then whose idea is it?

My contention is that the SC decision is not “bizarre” and is much more limited than portrayed. Cucci issued a CJD; asked it it was OK, SC found that in law, you can’t do that. End of story. They couldn’t have done anything else.

It doesn’t leave him powerless. AG’s in other states manage without FATA and CIDs.