by James A. Bacon
The Office of Attorney General (OAG) under former AG Mark Herring failed to adequately conduct a search for documents requested under the Freedom of Information Act by climate-change skeptic Christopher Horner, a Richmond Circuit Court Judge has found. The court ordered the OAG, now under Attorney General Jason Miyares, to conduct a new search.
The issue arose from communications between Herring’s OAG and the State Energy & Environmental Impact Center (SEEIC) backed by billionaire Michael Bloomberg. Under an arrangement agreed to by the OAG, SEEIC would fund the hiring of an OAG attorney to “advanc[e] progressive clean energy, climate change, and environmental positions.” Horner, a Keswick resident and senior fellow with the Competitive Enterprise Institute, exposed the communications but hit a dead end in further inquiries when the OAG claimed an exemption for working papers.
The larger legal issue is whether Virginia’s Attorney General is allowed to strike deals with private parties to fund positions on his staff that the General Assembly has not approved in its budget. Although Herring negotiated a deal to pursue a left-leaning cause, his action could have created a precedent for a successor to collaborate with conservative groups to harness the power of the OAG to pursue conservative causes.
The legal saga began in 2018, but resolution dragged out for years due to “various maneuvers by then-AG Mark Herring’s Office,” according to an article by Government Accountability & Oversight (GAO), a conservative organization.
Horner and CEI documented that the OAG applied, and was subsequently approved, for an SEEIC grant to pay $81,500 per year to hire a special prosecutor to pursue climate and renewable-energy issues. Technically, the attorney would be an employee of the Bloomberg Center at New York University. Similar arrangements had been worked out with numerous other Democratic attorney generals around the country. When Horner detailed his findings in a report, “Law Enforcement for Rent,” the AG’s office dropped the plan. But Horner continued digging.
As GAO describes the decision facing Miyares, a Republican who inherited the litigation from his Democratic predecessor, the OAG will have to decide whether to turn over records requested by the FOIA or continue to keep litigating to defend Herring’s claim of “working papers” privilege.
“We look forward to the results of a proper search,” Horner said in a statement, “and hope Virginia’s new Attorney General will put an end to three and a half years of stonewalling over how the state’s former top attorney come to make such a promise, and what led them to abandon the effort after we started asking questions. Hopefully, he’ll now turn over these public records that have been at issue since 2018.”
According to Legal Newsline, the funding of special prosecutors is now before Virginia House and Senate budget negotiators. There is a move to ban special interest groups from planting activist litigators in the OAG. Says Legal Newsline: “HB30 directs that compensation paid to employees of the AG for performing legal services on behalf of the Commonwealth will derive only by way of appropriation.”
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